September 24, 2018
Author: Amie McTavish
Organization: Angelo, Kilday & Kilduff
I. FUNDAMENTAL PRINCIPLES
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
42 U.S.C. § 1983
"Any person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, sued in equity, or other proper proceeding for redress."
42 U.S.C. § 1988
The Court may award attorneys' fees to the prevailing party in a civil rights lawsuit. [A plaintiff may receive attorneys' fees if he prevails in all or in part. A prevailing defendant may receive attorneys' fees only if the Court determines the action was frivolous as a matter of law.] California Penal Code §835a
"Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to affect the arrest, to prevent escape, or to overcome resistance."
II. BASIC PRINCIPLES IN EXCESSIVE FORCE CASES
Graham v. Connor (1989) 490 U.S. 386
Graham, a diabetic, was having an insulin reaction and went into a convenience store to purchase orange juice. He left quickly, arousing the suspicion of a peace officer. The officer detained him, cuffed him, shoved him face first against the hood, and then threw him into the patrol car. He then learned that no crime had been committed and released him. Graham filed a lawsuit and the United States Supreme Court ruled that civil rights claims arising in the context of an arrest or investigatory stop are analyzed under the Fourth Amendment "reasonableness" standards:
"The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight." … "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in that particular situation." The reasonableness inquiry is an objective one, and the officer's subjective intention is not relevant.
To determine reasonableness, the nature and quality of the intrusion on an individual’s Fourth Amendment interest must be balanced against the legitimate governmental interests at stake. Factors to consider in weighing the governmental interest include:
1. Severity of the crime at issue.
2. Whether the suspect poses an immediate threat to the safety of the officers or others.
3. Whether the suspect is actively resisting or attempting to evade arrest by flight.
4. Whether a warning was given if feasible to do so.
5. [Ninth Circuit suggests that additional factors might be considered. Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1440 fn 5 & Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 701]. Tennessee v. Garner (1984) 471 U.S. 1
Memphis officers respond to a prowler call and see a suspect fleeing across a back yard. Although "reasonably sure" the suspect was unarmed; the officer called "halt" and shot the suspect when he started to climb over a fence. The Supreme Court holds that "the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is Constitutionally unreasonable." … "When the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not Constitutionally unreasonable to prevent escape by using deadly force.'
Scott v. Henrich (9th Cir. 1994) 39 F.3d 912
The appropriate inquiry under the Fourth Amendment is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them. Officers need not use the least intrusive means of responding to an exigent situation; they need only act within the range of conduct that is identified as reasonable. [But see Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689 which says “an additional factor that we may consider in our Graham analysis is the availability of alternative methods of capturing or subduing a suspect.” The Ninth Circuit considered an expert’s declaration that the officers could have and should have used control holds instead of commanding the dog to attack.]
A. WHAT IS A REASONABLE USE OF DEADLY FORCE?
Lal v. Cal. (9th Cir. 2014) 746 F.3d 1112
Ninth Circuit affirmed grant of summary judgment in favor of defendant-officers who shot and killed Kamal Lal following a high speed chase. Upset over a domestic disturbance with his wife, Lal led police on a 45-minute high-speed chase on and off freeways before officers were able to disable his vehicle. Lal then exited his truck and tried to seriously hurt himself, then tried to provoke the officers into shooting him, and then advanced on two officers while holding a large rock over his head. Lal refused to comply with commands to stop and continued to advance on the officers, who then shot and killed him. The court held that under the totality of the circumstances, the district court’s finding that the use of deadly force was a reasonable because the officers objectively feared immediate serious physical harm. The threat Lal posed to the officers is not negated because Lal may have wanted to commit suicide by cop.
Gonzalez v. City of Anaheim (9th Cir. 2014) 747 F.3d 789
Officers pull over a minivan that had cut them off earlier. Officer Ellis approached the driver’s side and Officer Wyatt approached the passenger’s side. Officer Wyatt thought he saw Gonzales, the driver of the van, reach for something. Wyatt drew his gun and told Gonzales that if he reached down again, he would shoot. Gonzales then held his fists clenched in his lap. Gonzalez pulled his hand out of a bag between the front seats, and did not respond to commands to turn off the engine and give Officer Ellis his hands. Officer Wyatt reached into the car and tried to get Gonzalez to open his hand. Gonzalez then raised his hand to his mouth as if to swallow what he was holding. Ellis grabbed Gonzalez and Officer Wyatt called for assistance and tried to restrain Gonzales. Unable to do so, Wyatt entered the van and began punching Gonzalez in the head. Ellis saw Gonzalez reach for the gearshift so he hit Gonzalez on the back of the head to prevent him from driving the van. Gonzalez was able to shift the van into drive and the van began moving. The passenger door closed behind Wyatt and Gonzalez accelerated. Unable to stop or gain control of the van, Wyatt drew his weapon and shot Gonzalez in the head resulting in his death.
The district court granted summary judgment in favor of Officer Wyatt and City, and a three judge panel affirmed. In an en banc decision, the Ninth Circuit reversed the granting of summary judgment on the 4th Amendment excessive force claim but affirmed the granting of summary judgment as to the 14th Amendment denial of family relationship claim and on the uses of non-deadly force leading up to the shooting. The Court reasoned that there was a genuine dispute of material facts due to perceived inconsistencies in Wyatt’s testimony regarding the speed of the vehicle. If the jury were to find that the van was moving slowly at the time of the shooting they could find that other alternatives to deadly force were reasonable.
Forrett v. Richardson (9th Cir. 1997) 112 F.3d 416
Forrett commits a violent residential burglary, shooting one victim. Police pursue on foot through residential neighborhood and find him near a fence. Police fire several shots, but he climbs over the fence unhurt. Officers fire through the fence, wounding Forrett and capturing him. Forrett argues the officers used excessive force and claims that there was a reasonable non-deadly alternative since his capture was inevitable since he was surrounded by police. Jury agrees and awards $106,000 in punitive damages. Trial court reverses and Ninth Circuit affirms, holding that the Fourth Amendment does not require law enforcement officers to exhaust every alternative before using justifiable deadly force. Here, officers had P.C. to believe Forrett was willing to use violence and was a danger to innocence bystanders in the neighborhood. Use of deadly force was objectively reasonable.
Reynolds v. San Diego (9th Cir. 1996) 84 F.3d 1162
Suspect who acts erratically pulls a knife, but follows officer’s direction to get on ground. Officer approaches and puts knee in back and presses a gun to suspect’s back. Suspect suddenly turns and moves knife towards officer, who fatally shoots suspect. Plaintiff’s expert argues that officer acted unreasonably by putting gun on suspect’s neck and that officer’s actions caused the suspect to turn, leading to the fatal shot. An officer cannot be expected to accurately anticipate all of the possible responses a subject may have to his commands and then to tailor his actions accordingly in order for his conduct to fall into the category of what is considered reasonable. . . . The fact that an expert disagrees with an officer’s actions does not render the officer’s actions unreasonable. The inquiry is not ‘whether another reasonable or more reasonable interpretation of events can be constructed . . . after the fact.’ Rather, the issue is whether a reasonable officer could have believed that his conduct was justified. This is so notwithstanding that reasonable officers could disagree with the issue.
Blanford v. Sacramento (9th Cir. 2005) 406 F.3d 1110
Officers get report of man walking in residential area with 2 ½ foot cavalry sword. Officers repeatedly tell him to stop but he ignores them. Man walks to gate of a house and officers fear he will try to enter. Officers fire. Man goes through gate and into backyard where he tries to enter garage. Officers fire second and third volleys, leaving man paralyzed. Afterwards, officers learned man had headphones and did not hear their orders; man was taking antipsychotic medication for schizophrenia and bipolar disorder; and man was entering his own home. Graham says to judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene. “From this perspective, the deputies had cause to believe that Blanford posed a serious danger to themselves and anyone in the house or yard that he was intent upon accessing, because he failed to head warnings or commands and was armed with an edged weapon that he refused to put down.”
Scott v. Harris (2007) 550 US 372
Georgia deputy pursues a speeding car at high speeds through congested rural roads. After a ten-mile pursuit, the deputy rammed the rear of the suspect’s vehicle, causing him to lose control, overturn and crash, resulting in the suspect becoming a quadriplegic. Plaintiff argues that this was a use of deadly force which must be analyzed under Tennessee v. Garner, requiring that the suspect posed an immediate threat of physical harm. U.S. Supreme Court rejects this approach, saying that “Garner was simply an application of the Fourth Amendment’s reasonableness test to the use of a particular type of force in a particular type of situation.” Whether or not the deputy’s actions constituted an application of “deadly force”, the Court said that “all that matters is whether [the deputy’s] actions were reasonable.”
Espinosa v. City and County of San Francisco (9th Cir. 2010) 598 F.3d 528
Officers received a call from a neighbor that the front door of an apartment was swing open and the location could be a drug house. The first officer arrived and saw the door was closed: he pushed it slightly and it opened. The officer called for backup and entered the apartment. There was a bloody shirt hanging over an interior door. The apartment looked as if it were being renovated. Two backup officers arrived and they continued to search the apartment. They found a locked bedroom and kicked open the door after announcing themselves. Inside the room they found a resident of the apartment. He was cooperative. After searching him and finding a knife the officers heard noises indicating someone was in the attic. All three officers entered the attic with their guns drawn, where they encountered Sullivan. Sullivan did not put up his hands after the officers instructed him to do so. Two officers shot: one believed he saw something black in Sullivan’s hand and the other thought she saw something in Sullivan’s hand. Sullivan was fatally wounded. It was then discovered that he was unarmed.
The Ninth Circuit upheld the denial of summary judgment to the officers based on qualified immunity. Because the initial officer at the scene entered the apartment improperly, all of the officers (including those who arrived later) could be held liable for provoking the confrontation with Sullivan.
A.D. v. California Highway Patrol, 712 F.3d 446 (9th Cir. 2013)
Officers were involved in a high speed chase of a stolen vehicle. The driver, later identified as Karen Eklund, was driving at high speeds using all of the lanes of the freeway. She was the sole occupant of the vehicle. The chase ended with Eklund turned into a dead end street and hit a fence. Eklund refused to turn off her car and rammed it multiple times into a police vehicle behind her. CHP Officer Markgraf opened fire on Eklund, emptying the magazine of his gun and killing Eklund. No other officers fired. Before trial the plaintiffs abandoned all but their 14th Amendment claim. At trial, Markgraf's intent in shooting Eklund was at issue. He testified that he was afraid Eklund would succeed in getting past the parked vehicles and thereafter run over the other officers at the scene. However, none of the officers believed Eklund's vehicle posed an immediate threat to their lives. The district court denied Markgraf’s motion for judgment as a matter of law based on qualified immunity. The court noted the defense of qualified immunity was not available once the jury made a factual finding that the defendant acted with "a subjective bad intent."
Ryburn v. Huff (2012) 132 S. Ct. 987
Officers in Burbank learned that a high school student had written a letter threatening to “shoot up” the school. Officers investigate and go to the student’s home where they speak to the student and his mother. When they ask the mother if there were any guns in the house, she immediately turned around and ran into the house. The sergeant and another officer followed her in, where the officers stood in the living room with the mother and student. The officers did not conduct a search and ultimately concluded that the rumor about the student was false. The family files an action alleging violation of the Fourth Amendment by entering their home without a warrant.
Ninth Circuit reerses the District Court, holding that the officers’ belief that they or family members were in serious imminent harm was objectively unreasonable. However, U.S. Supreme Court reversed in a per curiam decision, holding that a reasonable police officer could believe that “the Fourth Amendment permits an officer to enter a residence if an officer has a reasonable basis for concluding that there is an imminent threat of violence.” The Court criticized the Ninth Circuit for looking at separate events in isolation and concluding that each one, in itself, did not give cause for concern. “But it is a matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint an alarming picture.” The court also noted that “Judges should be cautious about second guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation,” and said reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
B. MENTALLY ILL SUSPECTS
Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1216 (9th Cir. 2014) Police were called when Teresa Sheehan, a resident of a group home for adults in need of mental health support, threatened to kill a social worker. She was to be placed under a Welfare and Institutions §5150 hold. When the officers first entered Sheehan's room, she confronted them with a knife and threatened them. The officers immediately retreated. After calling for back up, the officers forcibly reentered Sheehan's room, and again were confronted with a knife and threats. Sheehan was pepper sprayed. When the pepper spray proved ineffective to stop her from attacking one of the officers with a knife, she was shot five to six times.
The Ninth Circuit split the event into three distinct parts: 1) the initial entry, 2) the second entry, and 3) the use of lethal force. The court’s organization of the events allowed it to determine that although the first entry was justified, the second was not as a matter of law. Although the shooting itself was justified, it could nevertheless be unconstitutional. Thus, the Court reversed the granting of summary judgment by the lower court. Sheehan’s mental health condition was a circumstance the officers should have taken into account. She was not suicidal and could not get out of her room, so she not a threat to others. Given her initial reaction she was likely to react violently to an escalating use of force.
After noting there is a disagreement among circuits, the Court determined that because the ADA applies broadly to police services, programs and activities, the ADA therefore applies to arrests. In this case the officers failed to accommodate Sheehan’s disability by forcing their way back into her room without taking her mental illness into account and without employing tactics that would have been likely to resolve the situation without injury to herself or others. A reasonable jury could find the situation had been diffused sufficiently to let the officers use less confrontational tactics. Thus, there is an issue for the jury as to whether the officers’ actions violated the ADA.
Deorle v. Rutherford (9th Cir. 2001) 272 F. 3d 1272
Use of a non-lethal beanbag shotgun round was found to be clearly excessive by the Ninth Circuit in a situation involving a person who was emotionally disturbed. Officers should distinguish persons who are simply criminals from persons who are mentally ill or emotionally disturbed, and different tactics may be required.
Drummond v. Anaheim (9th Cir. 2003) 343 F.3d 1052
Officers called by woman who needed help taking her fiancé to the hospital to get medication for bipolar disorder. Drummond was agitated and hallucinating, and eventually decided to take him in under Section 5150. Officers knocked him to the ground and handcuffed him and then officer placed all his weight on Drummond’s back and neck for about 20 minutes. After other officers arrived, a hobble restraint was used. Drummond lost consciousness and is now in a permanent vegetative state. Ninth Circuit found that the amount of force was excessive due to the fact that Drummond was mentally ill and not a felon.
C. QUALIFIED IMMUNITY DEFENSE
Harlow v. Fitzgerald (1982) 457 U.S. 800
An individual officer (not the entity itself) may be entitled to a Qualified Good Faith Immunity if the officer’s conduct does not violate a clearly established statutory or Constitutional standards.
Saucier v. Katz (2001) 533 U.S. 194
Qualified immunity is available for an officer who acts reasonably, even though he is acting under a mistaken belief about the amount of force required under particular circumstances.
Brosseau v. Haugen (2004) 543 U.S. 194
Officer B. responds to a fight call and chases H who jumps into a jeep. Officer B orders him to exit, but he ignores her and looks for keys. Officer B bangs on window, shattering it, and reaches for the keys. H starts the car and Officer B jumps backwards and fires a shot through the side window, hitting H in back. Officer B later explains she was “fearful for the other officers on foot who she believed were in the immediate area and for the occupied vehicles in H’s path and for any other citizen who might be in the area.” Supreme Court notes that there are few relevant cases discussing whether to shoot a disturbed felon who is set on avoiding capture through vehicular flight when persons in the immediate area are at risk. Since there are no cases that squarely govern this case, the officers’ actions “fell in the hazy border between excessive and acceptable force” meaning that the law has not clearly established that the officers’ conduct violated the Fourth Amendment. Qualified immunity applies.
Billington v. Smith (9th Cir. 2002) 292 F.3d 1177
Off-duty detective in unmarked car stops drunk driver. As he attempts to cuff him, driver starts hitting detective and violent struggle ensues. Suspect grabs officer’s gun and, during struggle, detective intentionally fires, killing suspect. Plaintiff’s expert witness expresses opinion that detective’s “conduct was tactically unreasonable and demonstrated a reckless disregard”. He also concluded that the city had a policy of tolerating excessive force because he thought the department’s investigation of the shooting was inadequate and that the rate of sustained excessive force complaints was significantly lower than the national rate. Ninth Circuit decides that a reasonable officer would have perceived that a substantial risk existed given the attack by the driver and that shooting the suspect was reasonable. The criticisms of the detectives “tactics fit the 20/20 vision of hindsight category Graham holds must be disregarded.” “The law does protect officers forced to make split second decisions about how to deal with emergency situations even when the course of action they choose is, in hindsight mistaken and results in a violent confrontation.” Even though the officer may have negligently put himself into the life threatening situation, his negligence did not make it unreasonable for him to use force to defend himself.
George v. Morris (9th Cir. 2013) 736 F.3d 829
Deputies were dispatched to a residence early in the morning to respond to a domestic violence incident involving a firearm. After their arrival, deputies see a man carrying a pistol in one hand with the other hand holding onto a walker. Twelve seconds after notifying dispatch of the man holding the firearm, three deputies fired at him causing his death. There was a dispute in the evidence as to whether the man’s pistol was pointed at the ground (as plaintiff contended) or whether he pointed it at the deputies. However, because it was reviewing the deputies’ motion for summary judgment, the court had to view the evidence in the light most favorable to the plaintiff. The court therefore denied qualified immunity to the deputies because a reasonable jury could find that shooting a 64-year-old man without objective provocation while he used his walker could be a violation of the Fourth Amendment.
Maxwell v. County of San Diego (9th Cir. 2013) 708 F.3d 1075
Off-duty deputy shot his wife in the jaw. A sergeant arrives on scene and the offduty deputy is secured in a patrol car, he admits to the shooting, and his gun is secured. Although the wife was expelling blood from her mouth, the sergeant delayed her ambulance from leaving for 5-12 minutes because he wanted to interview her first. The sergeant also separated the wife’s parents for 5 hours so they could be interviewed separately. The victim’s father was pepper sprayed when he tried to find his wife. The wife died during transport to the hospital due to blood loss. The Ninth Circuit denied qualified immunity to officers who delayed gunshot victim’s access to medical care, denied qualified immunity for detaining the parents for five hours, and denied summary judgment on the excessive force claim brought by the father re the pepper spray.
Cooper v. Sheehan (4th Cir. 2013) 735 F.3d 153
(qualified immunity denied to two sheriff’s deputies who responded to a domestic violence call without verbally identifying themselves and fired at homeowner without warning).
D. STATE LAW CLAIMS
Hayes v. County of San Diego (2013) 57 Cal.4th 622, Hayes v. County of San Diego (9th Cir. Cal. 2013) 736 F.3d 1223
Deputies were investigating a call from a neighbor who heard screaming. When the deputies arrived, Shane’s girlfriend, Geri, told the offices that Shane had tried to kill himself and she was concerned for his safety. A second deputy arrived and the two deputies entered the house. They were not aware that Shane had been drinking or that a few months earlier he had been taken into custody after a suicide attempt with a knife. The officers walked into the kitchen and saw Shane. They ordered him to show his hands. When he did so, he walked toward the deputies holding a large knife in his raised right hand. The deputies simultaneously fired their guns, killing Shane.
The Ninth Circuit asked the California Supreme Court to weigh in on whether an officer’s pre-shooting conduct can be considered in evaluating a negligence claim based on a use of deadly force. The California Supreme Court found that, under California negligence law, an officer’s “tactical conduct and decisions” preceding the use of deadly force can be considered in determining whether that deadly force was reasonable. In other words, the officer’s conduct can be considered as part of the totality of the circumstances leading up to the decision to use deadly force.
Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269
In a battery claim based on state law, the plaintiff has the burden of proof to show that the force used by the officer was unreasonable. It is not the officer's burden to prove the use of force was justified. [The same rule applies in a federal civil rights action. Reynolds v. County of San Diego (S.D. Cal. 1994) 858 F.Supp. 1064, 1069.]
III. MUNICIPAL LIABILITY
A. GENERAL PRINCIPLES
Monell v. Dept. of Social Services (1978) 436 U.S. 658 Public entity is liable under §1983 only where the constitutional violation is the result of an official custom, policy or practice. No liability based on Respondeat Superior (i.e.: Principal is liable for acts/omissions of the Agent).
Oklahoma City v. Tuttle (1985) 471 U.S. 808
A single act of police misconduct is generally not, by itself, sufficient to establish an official policy or custom under Monell.
Canton v. Harris (1989) 498 U.S. 378
Inadequate police training may be a violation under § 1983 where it can be shown to have been a policy reflecting "deliberate indifference" to Constitutional rights.
Laraz v. City of Los Angeles (9th Cir. 1991) 946 F.2d 645
Police Chief’s failure to sustain complaints of excessive force or to discipline officers may create an unconstitutional policy or custom, resulting in liability against the City.
Grandstaff v. Borger (5th Cir. 1985) 767 F.2d 161
Failure to take disciplinary action for improper shooting can rise to the level of “reckless disregard” and thus constitute a policy or custom, and thereby impose liability on a public entity.
Trevino v. City of Los Angeles (9th Cir. 1996) 99 F.3d 911
Plaintiff settles excessive force case against City, and then files another suit, alleging that the City had a policy of always paying the punitive damages awarded against officers, and that this created an unconstitutional policy or custom which removed the fear of punitive damages from officers and thereby encouraged officers to violate civil rights. Court says that there is no improper policy if City Council considers each case on an individual basis.
Wilcox v. City of Reno (9th Cir. 1994) 42 F.3d 550
Arrestee who was punched in the face twice by a police officer after being handcuffed was awarded $1.00 in damages by a federal jury. Despite the fact that he received only nominal damages, the Court awarded $66,535.00 in attorneys' fees to the plaintiff, pursuant to the Civil Rights Attorneys' Fees Award Act. The statute is intended to encourage vigorous enforcement of civil rights protections.
O'Neill v. Krzeminski (2nd Cir. 1988) 839 F.2d 9
Arrestee with bad attitude is struck by detention sergeant several times and then hit with a blackjack by another officer. That officer then dragged Arrestee by the throat across the detention area, criticizing him for "bleeding all over my floor." A jury awards both general and punitive damages against the officers, including against Officer Conners who never touched Arrestee. The Court affirmed the jury's award against Conners, saying that the officer had an affirmative duty to intercede on the behalf of a citizen whose Constitutional rights were being violated in his presence by other officers. Although he could not have stopped the initial punches, he was found liable for deliberately choosing not to make a reasonable effort to stop the others as the abuse continued.
U.S. v. Reese (9th Cir. 1993) 2 F.3d 870
A supervising officer who stands by and watches officers under his command use excessive force can be convicted of a criminal civil rights violation.
People v. Plesniarski (1971) 22 Cal.App.3d 108
A police officer learns his wife was a robbery victim and uses his status as an officer to "visit" suspect in City Jail. The resulting beating is a violation of Penal Code § 149, assault under color of authority. An officer is acting under "color of authority" when he performs an act which is made possible only because he is clothed with the authority of law or when he is acting under pretense of law.