Claims of police misconduct brought against law enforcement officials must be analyzed from both a factual and legal perspective. This analysis will necessarily involve a three-step process. First, the counsel for the defendant must identify and understand the claimant's theory of recovery as against his client--i.e., what must the claimant establish in order to recover in an action at law? Second, counsel must consider available defenses. Is the defendant immune from liability to the claimant and, if so, under what circumstances? Finally, if the defendant is not immune from liability, what relief is the claimant entitled to recover? Simultaneously with the performance of this analysis, the defense counsel must also take steps to develop whatever information and documentation may be necessary to defeat the claim, to support all available defenses, and to minimize or avoid any relief sought by the claimant.
The following is intended as a "checklist" to guide the defense attorney through the analytical process:
Was The Claimant Deprived Of A Constitutional Or Federally-Protected Right?
- First Amendment (protects freedom of religion, free speech, freedom of the press and the right to peaceably assemble)
Denial of permit to march, leaflet or speak in a public place--
Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930 (1975).
Arrest of speaker at political rally --
Kay v. N.H. Dem. Party, 821 F.2d 31 (1st Cir. 1987).
Harassment of religious organization --
Nashua Valley Christian Fellowship, Inc. v. Town of Ayer, 623 F. Supp. 542 (D. Mass. 1985).
Ejection of citizen from public meeting --
Hansen v. Bennett, 948 F.2d 397 (7th Cir. 1991), cert. denied, 112 S.Ct. 1939 (1992).
- Fourth Amendment (protects right to be free from unreasonable searches and seizures; provides that warrants shall issue only upon probable cause, supported by oath or affirmation)
False arrest --
Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991).
False imprisonment or illegal detention --
Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir. 1990).
Warrantless search --
Tyree v. Keane, 400 Mass. 1 (1987).
Warrantless arrest --
Fields v. City of S. Houston, 922 F.2d 1183 (5th Cir. 1991).
Failure to timely release pretrial detainee --
Brown v. Coughlin, 704 F. Supp. 41 (S.D.N.Y. 1989).
Apprehension of suspect by use of deadly force --
Tennessee v. Garner, 105 S.Ct. 1694 (1985).
Apprehension of suspect with excessive force --
Graham v. Connor, 109 S.Ct. 1865 (1989).
Police pursuit --
Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993).
- Sixth Amendment (protects right to an attorney in criminal proceedings)
Information garnered from surreptitious monitoring of conversations with attorney used to prejudice claimant's defense in criminal trial --
Weatherford v. Bursey, 429 U.S. 545 (1977);
St. Clair v. Schriber, 916 F.2d 1109 (6th Cir. 1990).
- Eighth Amendment (prohibits cruel and unusual punishment)
Inmate assaulted by guards --
Whitley v. Albers, 475 U.S. 312 (1986).
Inmate assaulted by fellow inmates --
Davidson v. Cannon, 474 U.S. 344 (1986);
Berry v. City of Muskogee, Okla., 900 F.2d 1489 (10th Cir. 1990).
Inmate denied certain privileges, such as visitation, practice of religious beliefs, access to legal materials, mail, etc. --
Sowell v. Vose, 941 F.2d 32 (1st Cir. 1991).
Inattention to medical needs of inmate --
Estelle v. Gamble, 429 U.S. 97 (1976);
Sires v. Berman, 834 F.2d 9 (1st Cir. 1987).
Suicide of inmate --
Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986).
- Fourteenth Amendment (a person's rights to life, liberty or property shall not be deprived without due process of law, nor shall any person be denied equal protection of the laws)
Punishment of pretrial detainee --
Redman v. County of San Diego, 942 F.2d 1435 (9th Cir.), cert. denied, 112 S.Ct. 972 (1991).
Inattention to medical needs of pretrial detainee --
Holmes v. Sheahan, 930 F.2d 1196 (7th Cir.), cert. denied, 112 S.Ct. 423 (1991);
Gaudreault v. Municipality of Salem, 923 F.2d 203 (1st Cir.), cert. denied, 111 S.Ct. 2266 (1990).
Suicide of pretrial detainee --
Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988), cert. denied, 109 S.Ct. 1338 (1989);
Manarite v. City of Springfield, 957 F.2d 953 (1st Cir.), cert. denied, 113 S.Ct. 113 (1992).
Any conduct that "shocks the conscience" or "offends the community's sense of fair play and decency" --
Rochin v. California, 342 U.S. 165 (1952);
Pittsley v. Warish, 927 F.2d 3 (1st Cir. 1991).
Illegal interrogation or extraction of involuntary confession--
Rex v. Teeples, 753 F.2d 840 (10th Cir.), cert. denied, 474 U.S. 967 (1985);
Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992).
Arrests of minorities --
Davis v. Frapolly, 747 F. Supp. 451 (N.D. Ill. 1989).
Selective enforcement of statute or regulation on the basis of race --
Mustfov v. Rice, 663 F. Supp. 1255 (N.D. Ill. 1987).
Deliberate denial of police protection on racial grounds --
Mody v. City of Hoboken, 959 F.2d 461 (3d Cir. 1992).
Federal Statutory Rights
Violation of a federal statute may also give rise to liability under 42 U.S. §1983 (and other civil rights remedies) if (1) the statute confers substantive rights, and is not merely a congressional declaration of policy; and (2) the statute does not expressly foreclose use of a civil rights remedy. Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981). A few of the federal statutes which will support a Section 1983 claim are:
- Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e) --
designed to ensure equal employment opportunities without discrimination on the basis of race, color, religion, sex or national origin
- Individuals With Disabilities Education Act (20U.S.C. §§1400, et seq.) --
designed to ensure that handicapped children receive education appropriate to their needs
- Religious Freedom Restoration Act (42 U.S.C. §2000bb) --
designed to limit government restrictions on the free exercise of religion
- Vocational Rehabilitation Act (29 U.S.C. §§701, et seq.) --
guarantees equal opportunity of vocational rehabilitation and independent living for individuals with handicaps
What Standard Of Care Does The Defendant Owe To The Claimant?
This will vary, depending on the nature of the right allegedly deprived.
- First Amendment
Although the deprivation of a First Amendment right need not be intentional, evidence of impermissible motivation (e.g., political) is ordinarily required.
- Fourth Amendment
A "seizure" must be intentional in order to give rise to a Fourth Amendment deprivation. The "reasonableness" of that seizure (and, hence, its constitutionality) will be determined by an objective standard whereby the nature and quality of the intrusion is balanced against the importance of the governmental interest alleged to justify it.
- Eighth Amendment
An inmate's claim based on inadequate medical care or the physical living conditions of his prison will be evaluated under the "deliberate indifference" standard. Inmate suicides are likewise analyzed under this standard. In the event of an uprising, however, prison officials are entitled to use force in a good faith effort to maintain or restore discipline, and will only be held liable for those injuries inflicted with malicious and sadistic intent.
- Fourteenth Amendment
A claimant may recover for a denial of procedural due process upon a showing that the defendant intentionally denied that process to which the claimant was constitutionally due.
A claimant may recover for a substantive due process violation upon proof that the defendant acted recklessly or with callous indifference to the claimant's rights. Recovery, however, will only be permitted for a truly horrendous abuse of governmental power. Mere negligence, gross negligence or bad faith will not be sufficient. Finally, deliberate conduct that "shocks the conscience" or "offends the community's sense of fair play and decency" will support a substantive due process claim without proof of the specific liberty or property interest purportedly violated.
In the context of a pretrial detainee denied medical attention, the defendant may be held liable upon a showing of deliberate indifference or proof that the defendant's conduct was grossly negligent or so reckless as to be tantamount to a desire to inflict harm.
In order to recover under the Equal Protection Clause, a claimant must allege and prove "purposeful discrimination."
Did The Defendant Act Under Color Of State Law?
In order to recover under 42 U.S.C. §1983, the challenged conduct must be committed "under color of law." This means that the defendant must have acted in an official, government capacity, clothed with the authority of the state, in order to be held liable. Miga v. City of Holyoke, 398 Mass. 343 (1986). Since cities and towns derive their authority from the state, local government actors are deemed to act "under color of law" whenever they commit acts within their official capacity.
- Unlawful Conduct
A police officer acts "under color of law," even if he violates state or local law, provided he acted within the apparent scope of his authority and office.
Monroe v. Pape, 365 U.S. 167 (1961).
- Private Action
Acts committed in pursuit of personal interests are not "under color of law."
Cronin v. Town of Amesbury, 895 F. Supp. 375 (D. Mass.), aff'd, 81 F.3d 257 (1st Cir. 1995);
Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982).
This is true, even if the police officer is on duty at the time he commits such acts.
Delcambre v. Delcambre, 635 F.2d 407 (5th Cir. 1981).
Off-duty police officer who invokes the real or apparent authority of the police department, or who engages in activity prescribed generally for police officers, may be acting "under color of law."
United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991), cert. denied, 112 S.Ct. 1960 (1992).
- Detail Officers
A police officer on private detail acts "under color of law."
Was The Defendant's Conduct The Cause Of Claimant's Constitutional Or Statutory Deprivation?
In order to recover under 42 U.S.C. §1983, the claimant must prove that the defendant's conduct was not only the cause in fact of his injuries, but also the proximate cause of his constitutional or statutory loss. Cause in fact requires an actual, tangible connection between defendant's conduct and claimant's resultant harm. Proximate cause, which is more elusive, requires proof that claimant's loss was reasonably foreseeable to the defendant.
The issue of proximate cause plays a substantial role in claims brought against municipal employers. A municipal employer cannot be held vicariously liable for the civil rights violations of its employees. Monell v. Dep't of Social Services, 436 U.S. 658 (1978). It can, however, be held directly liable to a claimant whose civil rights were violated as a direct result of a policy, custom or practice adopted or followed by the municipal employer. Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989). A finding of municipal liability, however, requires proof of an "affirmative link" between the conduct of the municipality and the constitutional or statutory deprivation. Rizzo v. Goode, 423 U.S. 362 (1976).
- Absolute Immunity
Judges and prosecutors are absolutely immune from liability for damages arising from their official acts and decisions. Pierson v. Ray, 386 U.S. 547 (1967). They can, however, be sued for injunctive or declaratory relief. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 735 (1980). Absolute immunity likewise protects against malicious acts, provided such acts are performed as part of a judicial or prosecutorial function. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Police officers who carry out court mandates or who testify as witnesses in judicial proceedings may also enjoy absolute immunity. Jacobs v. Dujmovic, 752 F. Supp. 1516 (D. Colo. 1990), aff'd, 940 F.2d 1392 (10th Cir. 1991).
- Qualified Immunity
A police officer is entitled to raise the defense of qualified immunity if, at the time he acted, (1) he was performing a discretionary function; and (2) he did not violate a clearly-established constitutional or statutory right of which a reasonable person in his position would have known. Anderson v. Creighton, 483 U.S. 635 (1987); Matthews v. Rakie, 38 Mass. App. Ct. 490, 493 (1995). In other words, if a police officer reasonably believed that his actions were lawful in light of clearly established law and based upon all information available to him at the time, then he shall be immune from liability. His reasonable belief, however, will be tested under an objective, rather than a subjective, standard. Davis v. Scherer, 468 U.S. 183, 191 (1984); Breault v. Chairman of the Bd. of Fire Commrs. of Springfield, 401 Mass. 26, 32 (1987), cert. denied, 485 U.S. 906 (1988).
A release of liability given in exchange for the dropping of criminal charges may be upheld provided the release was voluntary. Town of Newton v. Rumery, 480 U.S. 386 (1987). The burden of proving the voluntariness of that agreement, however, rests with the defendant. Moreover, refusal to discharge a pretrial detainee from incarceration unless he executes a waiver of his civil rights constitutes a violation of the Fourth Amendment. Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987).
- Statute of Limitations
Federal courts adjudicating civil rights claims under 42 U.S.C. §1983 must borrow the state statute of limitations applicable to personal injury actions under the law of the forum state. Thus, in Massachusetts, most Section 1983 actions must be brought within three years from the date the cause of action accrued. Street v. Vose, 936 F.2d 38 (1st Cir. 1991).
- Res Judicata
A Chapter 258 action brought against police officers in state court, after such officers successfully prevailed in federal court under 42 U.S.C. §1983, is barred under the doctrine of res judicata. Hayes v. Town of Orleans, 39 Mass. App. Ct. 682 (1996).
- Actual or Compensatory Damages
A victim unlawfully deprived of his or her civil rights is entitled to recover from the police officer responsible for such deprivation for the out-of-pocket expenses he or she sustained as a result of the defendant's conduct. This may include the victim's "specials"--her medical expenses, lost wages or lost earnings, and future loss of income--as well as her "general" damages--pain and suffering, emotional distress, humiliation, injury to reputation, etc. No damages may be awarded based on the abstract "value" or "importance" of the particular constitutional or statutory right infringed. Memphis Community Dist. v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978). In certain circumstances, however, when a plaintiff seeks compensation for an injury likely to have occurred but difficult to establish, some form of "presumed" damages may be appropriate. Nonetheless, such circumstances remain limited. Domegan v. Ponte, 972 F.2d 401, 417-18 (1st Cir. 1992).
- Nominal Damages
When a plaintiff can establish that he was unlawfully deprived of a constitutional or federally-protected right as a result of a police officer's activities, but cannot prove actual harm, then he is entitled to an award of nominal damages ($1) from the jury.
- Punitive Damages
Punitive damages may be awarded against a law enforcement official if he or she acted with "evil motive or intent," or with "reckless or callous indifference" to the claimant's civil rights. Smith v. Wade, 461 U.S. 30 (1983). A municipality, however, is immune from liability for punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
- Attorney's Fees
Under 42 U.S.C. Section 1988, the "prevailing party" in any action brought under Section 1983 may recover "a reasonable attorney's fee" as part of her costs. Moreover, this fee may include expert witness fees. The award of a reasonable attorney's fee is within the sound discretion of the trial court, although that discretion is not without limits. The prevailing party should ordinarily recover an attorney's fee "unless special circumstances would render such an award unjust." Blanchard v. Bergeron, 489 U.S. 87 (1989). A defendant, as the "prevailing party," may only recover attorney's fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even if not brought in subjective bad faith." Christianberg Garment Co. v. EEOC, 434 U.S. 4012 (1978).
The defense counsel must take reasonable steps to develop whatever information and documentation may be necessary to identify and defeat the civil rights claim, to support all defenses available to his client, and to minimize or avoid any relief sought by the claimant. This information and documentation will come primarily from three sources: (1) the claimant; (2) the defendant; and (3) third parties.
- Narrative of event
- Prior statements
- Employment history and records
- job application
- insurance information
- wage and salary information
- fringe benefits
- Medical history and records
- reports, summaries, correspondence, etc.
- Psychiatric history and records
- School records
- Military history and records
- Identities of witnesses
- Accident or incident reports
- Prior claims or litigation
- Newspaper clippings
- Physical evidence
- Past criminal history
- Narrative of event
- Prior statements
- Employment data and personnel files
- performance reviews and evaluations
- references, recommendations, citizen complaints or compliments
- physical examinations
- psychiatric examinations
- citations and awards
- Military history and records
- Educational background
- Physical evidence (vehicles, firearms, clothing, etc.)
- Police policies, guidelines and directives
- Photographs, maps, diagrams and sketches
- Police reports
- Witness statements
- Investigative file
- Court documents re: criminal proceedings
- Videotapes of arrest or booking
- radio transmissions
- telephone calls
- Dispatch log
- Internal affairs investigation
- Warrants and affidavits submitted in support
- Mug shots
- Correspondence and materials from District Attorney
- Medical records of injured officers
- Injury reports or conveyance slips describing condition of claimant
- Newspaper clippings
Contact should be made with any third party who may have knowledge or information regarding the incident, including:
- District Attorney's Office
- Massachusetts State Police Department
- Any local Police Department or law enforcement agency that participated in incident
- Fire Department
- Other witnesses