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QUALIFIED IMMUNITY

QUALIFIED IMMUNITY. 1. Facts= Constitutional Violation 2. Was the right CLEARLY ESTABLISHED. Would a reasonable officer have known at the time that his/her actions were unconstitutional. Fundamental Right to defense and entitlement not to face burdens of litigation.

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QUALIFIED IMMUNITY

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  1. QUALIFIED IMMUNITY • 1. Facts= Constitutional Violation • 2. Was the right CLEARLY ESTABLISHED. Would a reasonable officer have known at the time that his/her actions were unconstitutional. • Fundamental Right to defense and entitlement not to face burdens of litigation. • Once defense pled plaintiff has burden to prove defendant is not entitled to qualified immunity.

  2. CLEARLY ESTABLISHED LAW • 1. U.S. Supreme Court • 2. Controlling Circuit • 3. Highest State Court • 4. Specific Language of Federal law or Constitutional Provision • 5. Consensus of other Circuits • (Courts may consider government agency studies, regional standards, partially similar facts)

  3. INVESTIGATIVE DETENTION • Stops without REASONABLE SUSPICION. (Stops versus Consensual Encounters) 2. Hold for Unreasonable TIME;Consider Time to Accomplish Purpose 3. ACTIONS Unreasonable; Consider What is necessary to Accomplish Purpose, Maintain Status Quo, and Protect Officers

  4. HIGH RISK STOPS THREE BASIC JUSTIFICATIONS Reason to believe suspect(s)… • IS PRESENTLY ARMED • IS LIKELY TO FORCIBLY RESIST • HAS COMMITTED A DANGEROUS FELONY

  5. FACTORS TO CONSIDER WHEN USING FORCE AGAINST PERSONS STOPPED 1. NATURE OF OFFENSE 2. NATURE OF PERSONS 3. ACTIONS OF PERSONS 4. ENVIRONMENT

  6. TIPS TO AVOID LIABILITY • Create consensual atmosphere. • When compelling a person to stop or do something make sure you have reasonable suspicion. 3. At conclusion of stop explain purpose and ask for understanding.

  7. Hold suspects for a reasonable time. • Use force necessary to protect yourself and accomplish the purpose of the stop. • Conduct investigation in the field and cause as little embarrassment and inconvenience as possible. 7. Listen and act on suspect’s explanations.

  8. RACIAL PROFILING ISSUES • Anatomy Of A Racial Profiling Claim • Using Race/Ethnicity In Stops • Criminal Versus Racial Profiling • Statistics • Employment Context

  9. TIPS TO AVOID LIABILITY 1. Conduct stops, searches and arrests within parameters of law. 2. Do not do or say anything which may be used to support profiling claim. 3. When stopping suspects concentrate on NON-racial/ethnic descriptors. 4. Don’t be afraid to enforce the law. 5. Don’t say or do anything in the workplace to make anyone feel uncomfortable because of who they are.

  10. Middle Eastern Male Fundamentalist Muslim Suspect Country Student Visa Rental Car 18-44 8. Target Facility 9. Lots $-No Job Technical/Scientific Material 11. Violent Language 12. Religious Rhetoric 13. Loner 14. Unusual Visitors TERRORIST PROFILE

  11. TIPS TO AVOID LIABILITY FOR FALSE ARREST PROBABLE CAUSE: • Make sure you have probable cause. • In close cases, give the suspect the benefit of the doubt. • When in doubt apply 2 part test 1. What is the severity of the offense? 2. What is the ability to relocate the suspect?

  12. CONTEMPT OF POLICE Generally: • Use of vulgar language does not constitute a violation of law. • Citizens may argue with and challenge officer’s authority.

  13. MINOR OFFENSES • In minor non-dangerous offenses officers should attempt to resolve the situation without making an arrest. • If the officer feels an arrest is necessary he/she should make an arrest with a summons or other legal means without taking the person into custody.

  14. CLAIMS OF INNOCENCE • Check claims of innocence or misidentification. • If an individual is determined to be innocent take steps to make sure he/she is not falsely arrested again.

  15. WHEN POSSIBLE- GET A WARRANT Warrants will usually protect an officer except in cases of: • Misidentification • Intentional Misrepresentation or Leaving Out EXCULPATORY Evidence • Negligent Investigation • Lack of Probable Cause

  16. COMPUTER INFORMATION • Do not absolutely rely on computer information. It may be outdated, improperly programmed, or incorrect information may have been placed in the system. • If there is reason to believe there is an error, a reasonable attempt should be made to verify the information.

  17. POST FALSE ARREST ACTION • Immediately release citizens falsely arrested. 2) Treat them as innocent persons. 3) Make attempt to ensure they are not again falsely arrested.

  18. GROUP ARRESTS Merely being in the presence of criminals or in a place where criminal activity is occurring does not mean there is probable cause to arrest.

  19. TIPS TO AVOID LIABILITY FOR ILLEGAL SEARCHES • Comply with search warrant rule. • Know when and how searches may be performed without warrants. • Consent e. Inventory • Plain View f. Caretaker • Incident to Arrest g. Motor Vehicle • Exigent Circumstances h. Abandonment

  20. Do not illegally force entries especially to arrest. FORCED ENTRIES (felony) • With Warrant • RTBI (suspects home) Felony • Exigent Circumstances (3rd Party) • Without Warrant • P/C Felony • RTBI • Exigent Circumstances

  21. 4) Use only that amount of force necessary to protect yourselves and accomplish the search. Consider: • The nature of the offense. • The nature of the location. • The nature of persons present and their reactions.

  22. Do not unnecessarily damage property. • Do not take property not named in the warrant unless you have reason to believe it is contraband or evidence of a crime. • Know limits of authority in dealing with drug swallower. • Know laws and procedures in conducting strip searches.

  23. HONESTY IN POLICING • Brady v. Maryland, 373 U.S. 83 (1963) When defense counsel requests exculpatory evidence the prosecutor must disclose it. • Giglio v. U.S., 405 U.S. 150 (1972) Evidence concerning the credibility of a government witness is exculpatory. • U.S. v. Augers, 427 U.S. 97 (1976) Exculpatory evidence must be turned over without request.

  24. U.S. v. Bagley, 473 U.S. 667 (1985) There is no legal distinction between exculpatory and impeachment evidence for Brady purposes. • Kyles v. Whitley, 514 U.S. 419 (1995) The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the governments behalf in the case, including the police.

  25. Lachance v. Erickson, 522 U.S. 262 (1998) Upholding termination for lying during IA investigation the court stated “Our legal system provides methods for challenging the Government’s right to ask questions-lying is not one of them.” • Brogan v. United States, ___ U.S. ____ (1998) Upheld conviction for lying to a federal investigator.

  26. FAILURE TO PROTECT

  27. STATUTORY DUTIES 1. Duty to protect certain persons from abuse and neglect. (elderly, children, mentally retarded) 2. Duty to take actions re: domestic violence complaints. 3. Protective custody statutes re: persons who may injure themselves or others. (Mentally unstable, incapacitated by alcohol, runaway children) 4. Duty to provide emergency medical attention. 5. Duty to investigate/search for missing children. 6. Actions when finding semi/unconscious person. 7. Duties at defective railroad crossing. 8. Duty to protect persons from groups.

  28. OTHER DUTIES • Duty to protect identifiable person from imminent harm. • Promise to protect or warn of danger. • Highway safety. • Returning weapons to dangerous persons. • Court orders, • Persons in custody. • School crossing positions.

  29. CONSTITUTIONAL DUTY TO PROTECT • Duty to protect persons in custody. When depriving a person of their liberty officers have a duty to protect those persons. • State created danger theory. Officers may be held liable when they do an affirmative act which increases the risk of harm.

  30. SEX & POLICE • Criminal liability • Civil liability • Under color of law and scope of duty issues. • Indemnification

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