Civil Liability Issues:An Exercise in Core Constitutional PrinciplesNew Police Attorneys’ SchoolLegal Officers’ SectionIACP 2003Mark NewboldDeputy City Attorney-PoliceCharlotte-Mecklenburg Police Department

“Passive Protest” - Video

“Passive Protest”

Plaintiff’s Group

Identify potential plaintiffs Identify potential federal cause(s) of

action Identify defendant(s)

Defendant’s Group

What steps would you take to prepare for potential litigation?

Identify Core Constitutional Issues.

1st Amendment

“Congress shall make no law . . . Abridging the freedom of speech; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.”

4th Amendment

“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 and affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

14th Amendment Due Process

. . . “nor shall any state deprive any person of life, liberty, or property . . .” Procedural Due Process Substantive Due Process

Core Constitutional Principles

Freedom of Expression “Free trade of ideas”

Security in persons, housespapers and effects

Freedom From Arbitrary Governmental Action

1st

4th14th

Legitimate Governmental Interests1st

Reasonable TimePlace andManner

14th Due Process

4th

Reasonable Search and Seizure

Essential Balancing

Individual Constitutional Protections

Legitimate GovernmentInterests

Fourth Amendment Analysis

Is there a Seizure ? [B]y means of physical force or show of authority . .

. in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16(1968)

Officer terminates freedom of movement through means intentionally applied. Brower v. Inyo, 109 S.Ct. 1378 (1989); or

Person submits to a show of authority.

Fourth Amendment Analysis

If seized, then may force be used? “The right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Terry v. Ohio, 88 S.Ct. 1868, (1968).

Fourth Amendment Analysis

What is the degree (level or amount) of force that may be used? Force must be objectively reasonable. Its

use is not capable of precise definition or mechanical application.

What is the severity of the crime? Does the suspect pose an immediate threat

to the safety of the officers or others? Is the suspect actively resisting arrest or

attempting to evade arrest by flight?

Use of Force/Analysis/4th “Reasonableness of a particular use of force

must be judged from the perspective of a reasonable officer on the scene rather than with 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 a particular situation.”

Federal Case Law - 4TH Amendment

Tennessee v. Garner, 105 S. Ct. 1694 (1985) Fleeing felon/deadly force rule

“Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

14th Amendment-Due Process

. “nor shall any state deprive any person of life, liberty, or property . . .”without due process of law.

Use of Force 14th Amendment

Due Process Clause Prohibits arbitrary governmental

deprivations of life liberty and property without due process.

Prevents governmental officials from abusing their power, or employing it as an instrument of oppression.

14th Amendment Use of Force

When does it attach?

Search and Seizure

4th 14th Amendment

Non-Seizure14th Amendment

Post-Seizure8th

No cruel and unusual punishment

Disperse

Attempt to seize

Pursuit

Special RelationshipIn Custody

Created Danger

Use of Force 14th Amendment

Shocks the Conscience Special relationship established by State Danger Created by State

Substantive Due Process “Shocks the Conscience”

“Thus in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may be so fairly said to shock the contemporary conscience” Lewis at 1716 at n.8

14th Amendment

Special Relationship. Restraint on person’s liberty

Assuming control over the person A State's failure to protect an individual

against private violence simply does not constitute a violation of the Due Process Clause. DeShaney v. Winnebago,109 S.Ct. 998(1989).

Danger Creation. State creates the danger that harmed

the individual.

14th Amendment – Danger Creation State created the danger Plaintiff was a member of a limited group States conduct put Plaintiff at a

substantial risk of serious, immediate and proximate harm

State acted recklessly in conscious disregard of that risk

State’s conduct when viewed in total was conscience shocking

1st Amendment

Is the Speech protected? Not all expressive

symbolic speech is protected

True Threat (Virginia v. Black)

IntimidationTrue Threat

Political Speech Plus a little spice

Bradenburg

Political Speech

Threat level

1st Amendment Analysis

True threat (Order to Disperse) Those forms of intimidation designed to

inspire fear of bodily harm. Thus just as a State may regulate only that

obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Virginia at 123 S.Ct. 1536 (2003)

First Amendment - Analysis

Analysis Does the person have a right to be at that

location Public forum?

Public property which has by law or tradition been given the status of a public forum. A place where people have traditionally be allowed to associate and speak for or against certain subjects.

First Amendment - Analysis

If public forum, then is the restriction content based? (Is the restriction triggered by the Speaker’s message or has a crime occurred?)

If the restriction is content based, then the restriction is subject to the highest degree of constitutional scrutiny. (strict scrutiny request)

Restriction will withstand constitutional review only if it was necessary and narrowly tailored to achieve a compelling public interest.

First Amendment - Analysis

Analysis Is restriction content neutral

a content neutral restriction is one that regulates time, place or manner.

The restriction will withstand constitutional review if the implicated measure was narrowly fashioned to further a significant governmental interest, and it leaves open ample alternate channels of communication. (intermediate scrutiny test)

First Amendment - Analysis

Rationally related test If action does not invade any fundamental

right, then governmental restriction survives so long as it is rationally related to the advancement of a legitimate state interest..

Defendants

What steps would you take to prepare for potential litigation

Identify Core Constitutional Issues

Less Lethal/Relationship to Core Constitutional Principles

Use of “less lethal” to Reasonable Seizure Physical force Chemical agents to seize Taser to seize Horses to contain

Use of less lethal to Disperse

Use of Less Lethal / Due Process/First Amendment Verbal Commands Physical Coercion to disperse Chemical Agents to disperse Taser to disperse Physical force to disperse

ConclusionCore Principles

1st

Promotes free trade of ideas Level of protection depends on the content

and location

4th Protects security interest in person homes

places and effects 14th Due Process Clause

Prohibits arbitrary governmental action