The 20/20 Vision of Hindsight: Police Liability for Use of Force

1. The 20/20 Vision of Hindsight: Police Liability for Use of Force Geoff Grindeland

2. Agenda • Police authority to use force • Constitutional limitations on use of force • Qualified immunity

3. Why do we need police officers?

4. Authority to Keep the PeaceMike v. Tharp21 Wn. App. 1 (1978) • Common law recognizes police officers’ historic authority to arrest to keep the peace. • “When police are called to the scene of a dispute which appears likely to erupt in violence, they are empowered to arrest those who attempt to breach the peace.”

5. Authority to Use Force • An officer “may use all necessary means to effect the arrest.” RCW 10.31.050; see also RCW 9A.16.020(1). • Deadly force may be used to arrest a person an officer reasonably believes committed a felony and poses a threat of serious physical harm to the officer or others. RCW 9A.16.040. • In addition, everyone has right to use force in self-defense and to defend one’s family or companions. RCW 9A.16.020, .050.

6. 4th Amendment(applies to states through 14th 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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

7. Constitutional Limits on ForceGraham v. Connor490 U.S. 386 (1989) • The 4th Amendment permits only force that is “reasonable” under the circumstances. • Determining reasonableness involves a careful balancing of the nature and quality of the intrusion on the individual's interests against the governmental interests at stake.

8. Constitutional Limits on ForceGraham v. Connor490 U.S. 386 (1989) • Reasonableness is not capable of precise definition, but pertinent factors include: • Severity of crime; • Whether suspect poses an immediate threat to the safety of the officers or others; and • Whether the suspect is actively resisting arrest or attempting to evade arrest.

9. Constitutional Limits on ForceYoung v. County of Los Angeles655 F.3d 1156 (9th Cir. 2011) • Most important Graham factor is __________________?

10. Constitutional Limits on ForceYoung v. County of Los Angeles655 F.3d 1156 (9th Cir. 2011) • Most important Graham factor is whether the suspect poses an immediate threat.

11. Constitutional Limits on ForceGraham v. Connor490 U.S. 386 (1989) • Reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” • Courts should allow 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.”

12. “officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving”

13. 8 seconds after officer arrives, suspect is “cutting his wrists right now” • Immediately after that, suspect is “running”(officer also concerned for citizens in minimart) • 4 seconds later, suspect is “coming at the officer” (officer backing into street) • 4 seconds after suspect starts toward him with the knife, officer shoots • Entire incident = 22 seconds

14. Constitutional Limits on ForceGraham v. Connor490 U.S. 386 (1989) • Objective test The question is whether the use of force was “objectively reasonable” in light of the facts and circumstances confronting the officer, without regard to his or her underlying intent or motivation. • Subjective intent not relevant “An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.”

15. Reasonable ≠ MinimumScott v. Henrich39 F.3d 912 (9th Cir. 1994) • No requirement to use “least intrusive” means to effect arrest. • “Officers . . . need only act within that range of conduct we identify as reasonable.” • We don’t want officers to hesitate before using appropriate force (placing them and the public at risk) • We don’t want to entangle courts in endless second-guessing of police decisions regarding how much force was minimum needed • But . . . an additional factor some courts use is whether an officer had feasible alternatives to the force used. See, e.g., Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010).

16. Example 1: Balancing TestScott v. Harris550 U.S. 372 (2007) • Deputy in Georgia clocked vehicle doing 73 mph in a 55 zone • Tried to pull vehicle over, but sped away • Chase down two-lane roads at speeds exceeding 85 mph • When patrol car contacted rear bumper of suspect’s vehicle, suspect lost control, left roadway, and crashed • Suspect rendered a quadriplegic in the crash • Filed federal civil rights action alleging excessive force and unreasonable seizure under the 4th Amendment

17. Example 1: Balancing TestScott v. Harris550 U.S. 372 (2007) The Court did not explicitly address the Graham factors. Instead, its analysis balanced the suspect’sinterest against the government’s interests

18. Example 1: Court’s RulingScott v. Harris550 U.S. 372 (2007) • Suspect intentionally put himself and public in danger. • At-risk public was entirely innocent. • Officer's attempt to end dangerous pursuit was constitutional, even if it placed the suspect at risk. • Police do not need to let fleeing suspects get away whenever they drive recklessly. That would encourage suspects to flee. • Affirmed SJ in favor of deputy on basis of qualified immunity.

19. Example 2: Factors AnalysisYoung v. County of Los Angeles655 F.3d 1156 (9th Cir. 2011) • Off-duty probation officer driving to gym, wearing gym clothes • Pulled over for failure to wear seatbelt • Exited truck, sat on curb, and ate broccoli while deputy was writing citation • Deputy repeatedly told him to get back in his truck, but Young refused • Deputy then pepper sprayed him without warning • Young rose to feet, and deputy struck him twice with baton

20. Example 2: Factors AnalysisYoung v. County of Los Angeles655 F.3d 1156 (9th Cir. 2011) The Court decided the case using Graham’s reasonableness factors: • Severity of crime; • Whether suspect poses an immediate threat to the safety of the officers or others; and • Whether the suspect is actively resisting arrest or attempting to evade arrest. • Feasible alternative?

21. Example 2: Court’s RulingYoung v. County of Los Angeles655 F.3d 1156 (9th Cir. 2011) • Deputy did not argue driver posed threat (“nor could he”) • Crimes = traffic infraction and obstruction • Not actively resisting or fleeing • Available options included warning of possible arrest; warning that force would be used; or simply arresting suspect • Use of pepper spray was unreasonable • Reversed SJ (in part) for deputy and remanded for trial • Affirmed SJ regarding arrest. Order to return to vehicle was proper, as was arrest for failure to obey.

22. Types of Immunity • Absolute • Qualified (state) • Qualified (federal)

23. Absolute Immunity • Legislators • Judges • Prosecutors • The President

24. State Law Qualified ImmunityGuffey v. State103 Wn.2d 144 (1984) Applies when an officer: • carries out a statutory duty, • according to procedures dictated by statute and superiors, and • acts reasonably

25. Qualified Immunity(Federal Law) • Public officials, including police officers • Source is common law defense of “good faith”

26. Immunity Under Federal LawAnderson v. Creighton483 U.S. 635 (1987) • Qualified immunity applies when, in light of clearly established principles governing the particular conduct, the officer objectively could have believed that his or her conduct was lawful.

27. Protects Reasonable Mistakes • Qualified immunity gives government officials “breathing room to make reasonable but mistaken judgments.” • Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) • Can be mistakes of law, fact, or mixed questions of law and fact • Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” • Malley v. Briggs, 475 U.S. 335 (1986)

28. Reasonable Mistakes of Fact:Which is the real handgun?

29. Balancing Interests • Holding officers accountable if they violate rights • Shielding officers from harassment and excessive liability

30. Social Costs of Lawsuits Against Officers • Expenses of litigation • Diversion of official energy from other duties • Discouraging qualified candidates from joining the police force • Discouraging officers from vigorous performance of their duties

31. Rationale for Immunity The public interest is best served by encouraging officers to vigorously perform their duties in an uncertain legal environment without fear of incurring civil liability.

32. Immune Unless Violated Clearly Established Right Officers are entitled to qualified immunity if their conduct does not violate “clearly established” constitutional rights.

33. What is “clearly established?”Ashcroft v. al-Kidd131 S. Ct. 2074 (2011) • The contours of the right are “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” • Established case law must have placed the constitutional question “beyond debate.”

34. Mistakes of Law: The Hazy Boundary Between Lawful and Unlawful Clearly Constitutional Hazily Constitutional Hazily Unconstitutional Clearly Unconstitutional

35. Act Unless Clearly Unlawful Clearly Constitutional Hazily Constitutional Hazily Unconstitutional Clearly Unconstitutional

36. Ashcroft v. al-Kidd 131 S. Ct. 2074 (2011) Of course that’s allowed! Most are pretty sure it’s okay. There’s still some reasonable debate. “Every reasonable official would have understood” you can’t do that. It’s “beyond debate.”

37. Particularized Inquiry • Outcome depends on level of generality at which relevant legal rule is defined • Whether a right was clearly established must be determined in light of the specific context, not as a broad general proposition

38. Fair WarningHope v. Pelzer 536 U.S. 730 (2002) Alabama prison inmate handcuffed to “hitching post” for seven hours in sun brought civil rights claim for violation of Eighth Amendment’s prohibition against “cruel and unusual punishment.” Guards argued law was not “clearly established.” Held: Guards had “fair warning” that their conduct was unconstitutional. Prior Fifth Circuit case forbade "handcuffing inmates to the fence and to cells for long periods of time, and forcing inmates to stand, sit, or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods.” There is no requirement that prior cases be fundamentally similar: officers can be on notice that their conduct violates established law even in novel factual circumstances.

39. Immunity from Suit • Entitlement not to face burdens of litigation • Should be decided at the earliest possible stage

40. Objective Standard • Subjective standard led to prolonged discovery into motivation • State of mind (malice or good-faith) is no longer relevant • Factual knowledge is relevant

41. Old Process Saucier v. Katz533 U.S. 194 (2001) • Two steps, in sequence • First, was there a constitutional violation? • Second, could officer reasonably have believed conduct was constitutional?

42. Reason for Rigid Process The first step (determining whether a violation occurred) was thought necessary for the development of the law

43. Problems with Rigid Process • Wasted judicial resources on issues that did not affect outcome • Failed to honor purpose of limiting burden on officers • Hard to obtain appellate review of decisions that had prospective effect, creating dilemma for departments • Immunized official can appeal decision to Supreme Court (but not, perhaps, to Court of Appeals). Camreta v. Greene, 131 S. Ct. 2020 (2011).

44. New Flexible Process Pearson v. Callahan555 U.S. 223 (2009) • Trial court has discretion as to which prong to decide first • Will make it easier to achieve goal of resolving insubstantial claims at the earliest possible opportunity

45. Example of Qualified-Immunity AnalysisBrooks v. Seattle661 F.3d 433 (9th Cir. 2011) • Mother taking her 11-year-old son to school, pulled over for driving 32 mph in a 20 mph school zone. • Ms. Brooks refused to sign citation, which at the time constituted a misdemeanor under the Seattle Municipal Code. Officers explained that signature was not an admission of guilt and that she would be arrested if she did not sign. • When officers told her she was under arrest, she refused to get out of the car. When officers warned her she would be tased (in drive-stun mode), she told them she was seven-months pregnant. • Tased her in left thigh, left arm, and finally neck before they could get her out of car.

46. Example of Qualified-Immunity AnalysisBrooks v. Seattle661 F.3d 433 (9th Cir. 2011) • Judge Richard Jones denied the officers’ motion for summary judgment on basis of qualified immunity, and they appealed to the Ninth Circuit. • Court reviewed Graham factors and decided that, viewing the evidence in the light most favorable to Ms. Brooks, a reasonable fact-finder could conclude the force was excessive. (But see Judge Alex Kozinski’s dissent.) • At the time of the arrest (November 2004), however, there were no federal appellate court cases that had found the use of a taser to be excessive force. Therefore, the court could not conclude that “every reasonable official” would have recognized the use of force was excessive, so the officers were entitled to qualified immunity.

47. Questions? Geoff Grindeland (206) 812-7451 grindeland@millsmeyers.com