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A Primer on Excessive Force and the Fourth Amendment

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A Primer on Excessive Force and the Fourth Amendment

A Primer on Excessive Force and the Fourth Amendment

All police must comply with the U.S. Constitution. When they don’t, the harm police cause is unjustified, and its impact can be far reaching. In this presentation, we introduce you to the major issues that arise in representing people harmed by police during an “arrest, investigatory stop, or other seizure.” We will take a practical look at the Fourth Amendment’s prohibition against unreasonable seizures, and the primary vehicle for addressing excessive police force—42 U.S.C. § 1983. In doing so, we will explore Fourth Amendment excessive force caselaw, including the doctrine of qualified immunity, and touch on the hot topic of police bodycams.



Jason Potter:  Welcome to A Primer on Excessive Force and the Fourth Amendment by Bivens. My name is Jason Potter and I'm a staff presenter at Quimbee. Along with slide handouts, we've also prepared some supplemental materials, including cases, statutes, rules, and links. You can follow along with these materials or not whatever strikes your fancy.

   On June 25th, 2016, while investigating a call from a woman who insisted a man with a rifle was on a certain corner in Fresno, California police encountered a tire squealing pickup driven by 18-year-old Dylan Noble. Dylan fled in a pickup and a chase ensued until police managed to stop Dylan's truck. After exiting the truck, Dylan rapidly walked towards officers refusing to obey when instructed to show both hands. Officers alleged that Dylan reached behind his back then very quickly pulled his arm out. At which point Dylan was heard saying, "I effing hate my life." An officer then shot Dylan who fell to the ground. With Dylan prone and subdued officers then shot him at least two times. Dylan died as a result of four gunshot wounds, and a weapon was never found.

   How far can the government go in its complex, but important capacity as police power. On the one hand polices ensure safety, prevent crime and capture suspected criminals, which helps bring those convicted to justice. However, police can also cause serious harm. Police enter without warrants, police tamper with evidence and as in Dylan's case, police kill people. These acts are considered justified in some instances. All police have to comply with the U.S. Constitution which provides the lens through which courts view the government's assertion of police power. When they don't the harm they cause is unjustified.

   In cases of police use of force like the shooting of Dylan Noble, the harmed individual has a number of remedies. Although the availability of these remedies has been steadily chipped away over the years by courts. As one scholar noted, this has left policing with a lot of law and little remedy. Nonetheless, today we're going to dive into the laws and the primary remedy for excessive force claims in a nuts-and-bolts fashion. Before we do, though, it's important to recognize the zealous debate about police reform that's currently occurring throughout the United States. In this presentation, we are not going to debate or take sides on these or related issues. Despite their natural intersection with today's topic our goal is practical to introduce you to the major issues that arise in representing people harmed by police during an arrest, investigatory stop or other seizure. Now to that end, we will take a practical look at the Fourth Amendment's prohibition against unreasonable seizures and the primary vehicle for addressing excessive police force, Title 42 of the United States code Section 1983.

   So at the outset, it's important to clearly frame the issue we'll be discussing as well as its greater context. We'll start with some terminology. The term police is used throughout this presentation as generally descriptive of all law enforcement officers, including municipal peace officers, state police, sheriffs, deputies and so on. Our discussion pertains to federal officials only where noted because federal officials are covered by a specific cause of action called a Bivens action. The term police misconduct is an illegal act by a police officer that's taken in their official capacity. Misconduct is a broad term that includes, but isn't limited to unwarranted seizure of property, unwarranted searches, unwarranted surveillance, witness tampering, perjury, spoliation of evidence, falsification of evidence, intimidation, coerced confession, racial profiling, corruption, false arrest, false imprisonment and excessive force. So the police misconduct term is an umbrella term. In this presentation, we focus only on excessive force.

   There are a few other terms and common usage today that are worth highlighting; the term police brutality and the term police violence. The terms police brutality and police violence are used in the advocacy sphere though less used by courts. The Supreme Court has rarely used the term police brutality in the context of a 1983 claim. We will not be using these terms today. Our approach to a terminology in this presentation is to reflect the language used by courts as this CLE is principally a primer on the law regarding excessive force. So here's a mile high view of the basic rules. Laying this out will help us home in on the exact issue we're addressing in this presentation.

   In the U.S. police officers clearly have to comply with law at all levels, including state and federal law, especially the U.S. Constitution. State laws provide a number of avenues to address use of force and states can be more protective. They can grant more remedies beyond what federal laws grant. State remedies for excessive force include state exclusionary rules, state criminal prosecutions, state civil damages suits, including an action for false arrest, an action for false imprisonment and an action for assault and battery. And another remedy is decertification or delicensing of officers. For example, stripping an officer of the authority to act as an officer.

   We are not going to cover the state law implications of police use of force in this presentation, but this doesn't mean they're less important. In fact, pursuing a state civil suit may be more in line with a client's interests than pursuing a federal excessive force claim. Further many clients are just seeking for the behavior to stop or a more immediate and practical remedy, which may be better achieved through state civil or administrative remedies. Regarding addressing federal constitutional violations the U.S. Constitution doesn't lay out the ideal of policing by any means. It's merely providing the floor. Now, which constitutional provision applies depends on the context.

   The setting of the use of force; for example, imagine that Dylan Noble, who was shot by officers had lived through it. Officers arrested him and placed him in a squad car. At that point, an officer banged his head on the window to stop him from yelling. The police use of force after Dylan's arrest would be analyzed under the Due Process Clause and the U.S Supreme Courts shock the conscience standard. But with regard to police shooting Dylan while they were apprehending him, i.e. before arrest a court would apply the Fourth Amendment. In the 1980s, the Supreme Court decided that all claims of excessive force, whether they're deadly or not during an arrest, investigatory stop or other seizure of a free citizen should be reviewed under the Fourth Amendment's prohibition against unreasonable seizures.

   Therefore, if Dylan lived and you were representing him in a claim of excessive force, at least part of your focus would be on researching and arguing in the ambit of the Fourth Amendment's prohibition on unreasonable seizures. I'll explain why the act of shooting Dylan would be considered a seizure in a moment. Suffice to say, this is the specific context we're concentrating on today, uses of force during arrest, stop or other seizure. Fourth Amendment law. The Fourth Amendment case law regarding excessive force during an arrest, stop or other seizure is in a word messy. Police use of force is based on the totality of circumstances and needs to be objectively reasonable as viewed from the shoes of an officer on the scene. This makes the whole thing super fact dependent and the analysis highly tailored to the individual matter. So there's a huge number of cases out there.

   There are several ways of addressing constitutional violations by police officers. These include but aren't limited to federal criminal prosecution under Title 18 of the United States code section 242. Now this statute involving deprivation of rights under color of law, criminalizes violations of rights when an officer is acting under color of law and requires a high level of intent. Another way of addressing constitutional violations is through federal civil suits for reform or damages. For example, Title 42 of the United States code section 14141. This statute, the Law Enforcement Misconduct Statute allows the attorney general to sue municipalities in which officers are found to have engaged in a pattern or practice of excessive force per the Fourth Amendment. The result can be restructural reforms that are designed to rectify the pattern.

   And another example of a federal suit for damages is Title 42 of the United States codes section 1983. This civil rights statute, part of the Civil Rights Act of 1871 creates a civil option for suing for violations of constitutional rights. This statute is the central way for individuals to seek compensation for an officials use of excessive force. We'll discuss this remedy in detail, including the issue of qualified immunity, which often shields officers from liability. This remedy section 1983 is sometimes referred to just as Section 1983 or Section 1983 claim.

   Although important remedies sections 242 and 14141 are not within the scope of today's presentation because we're going to have enough to cover with Section 1983 and the Fourth Amendment jurisprudence. But it's important to place those remedies in the greater context and not view them in a vacuum. So here's the low down, we will not be covering state law remedies or exclusionary rules, criminal prosecutions, or reform actions, state or federal. We won't be discussing class action suits and injunctive remedies, even though they're important. We won't be discussing mistreatment of prisoners, arrests generally, or civil remedies for maliciously causing an arrest.

   Our narrow focus here is answering the following question. What are the possible federal remedies for the victim of officer misconduct who's seeking damages for an unconstitutional use of force that occurred at an investigatory stop? We'll continue to reference the case of Dylan Noble throughout as a means of grounding and extending your understanding of material. So to that end, here's our roadmap for today. First, we'll do an overview of Section 1983 and examine proving a claim of excessive force. Second we'll review the major defenses, including qualified immunity. And third we'll briefly cover a hot topic in excessive force case law.

   Section 1983 is a major federal statute allowing people to enforce their constitutional rights against state and local officials, sometimes municipalities and other actors operating under color of state law. The text of Section 1983 states, "Every person who under color of any statute, ordinance regulation, custom, or usage of any state or territory subjects or causes to be subjected any citizen of the United States or 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, suit in equity, or other proper seating for redress."

   Section 1983 is an old statute with lots of history. Let's take a brief look at some historical highlights of the 1983 statute. Note that Martin Schwartz's treatise Section 1983 Litigation, which is available freely online is an excellent reference text for anyone looking for a Section 1983 primer. A link to the text of this treatise is in your course materials. This treatise is the source of some of the historical aspects of 1983 that we're going to talk about. After the Civil War ended, Congress passed the KU Klux Klan Act of 1871 as a means of protecting Southern African Americans. Section 1983 was section one of the KKK Act. One of the issues is that you can't directly assert a constitutional claim. That kind of claim needs a procedural vehicle. At the time, there was no vehicle. So Section 1983 was set up to be that vehicle.

   The first time Section 1983 became a means to address abuses by state and local government officials or individual employees of state and local governments was in 1961 with the U.S. Supreme Court's decision in Monroe versus Pape. In that case, Justice Douglas found that Section 1983 is a legal remedy for violations by state officials, separate and apart from state law remedies. According to the court Congress' intent in passing Section 1983 was to provide civil damages against state officials for constitutional violations and to deter future infringements. According to Justice Douglas, the Section 1983 remedy is supplemental to the state remedy and the latter need not be first sought and refused before the federal one is invoked. After Monroe individuals seeking compensation for constitutional violations, brought actions against state and local officials, but it wasn't until 1976 that they could seek attorney's fees in addition to damages. In 1976, Congress passed the Civil Rights Attorney's Fees Awards Act codified at Title 42 of the United States code Section 1988. Subsection B of the statute allows plaintiffs who successfully prove their Section 1983 claims to seek attorney's fees though, not expert fees.

   This statute is beyond the scope of our presentation today, but it's worth noting that the last step in a Section 1983 action is often a prevailing party's filing of an application for attorney's fees, which can raise its own set of legals, issues and arguments. During this time, plaintiffs expanded their gaze to municipalities like cities and counties, and began to seek monetary damages and sometimes injunctive relief and attorney's fees from towns, cities, counties, and entities. In Monell versus the Department of Social Services of the City of New York the Supreme Court sanctioned this in limited circumstances, which we'll explain more in a little bit. So Section 1983 actions can be brought against state officials, including police and peace officers and so on. And sometimes municipalities but what about federal actors? As an aside Section 1983 does not explicitly cover claims against federal employees. There is a cause of action against federal employees under Bivens versus Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 case.

   But a Bivens action is generally more limited than a 1983 action in terms of the allowable scope of a claim and the standard of proof. Discussion of Bivens claims is really beyond the scope of this presentation. Today there's a huge amount of case law to Section 1983 and Fourth Amendment excessive force claims. And the federal circuits may interpret the Supreme Court precedent really differently. So it's important to know the law in your circuit.

   With this background, we're going to dive deeper into the doctrine. In doing so we're going look at Dylan's case throughout. Dylan was shot and killed by police, shot at least twice after he was subdued. Rather than wade into the murky area of wrongful death claims under Section 1983 we're going to suppose that Dylan lived through the experience and was arrested. He now wants to seek damages from the individual police officers who shot him as well as the City of Fresno and the Fresno Police Department for using unconstitutional force prior to his arrest. You are representing Dylan. In your research in conversations with Dylan, you have zeroed in on a Section 1983 claim in federal court against the officers and the City of Fresno and the police department.

   Dylan wants to know the major issues you'll probably have to litigate with this. Any thoughts? Well, in this scenario, there are likely three major issues to Dylan's 1983 claim. First, will Dylan be able to establish that the individual police officers violated his federal constitutional rights? Second, will Dylan be able to establish municipal liability by showing that the police officer was effectively carrying out a municipal policy practice or decision? And third will Dylan be able to overcome a defense of qualified immunity, which would otherwise shield the individual officers from liability? So we'll proceed in this order and work through these common issues.

   Issue one, will Dylan be able to establish that the individual police officers violated his federal constitutional rights because Section 1983, merely provides the vehicle for a constitutional violation and doesn't supply the substantive law. As Dylan's attorney you'll need to quickly assess the body of rules that apply by looking at the context of the police conduct. Because police conduct after Dylan's hypothetical arrest is not at issue the Supreme Courts shock the conscience standard of the federal Due Process Clause doesn't apply here. Dylan's excessive force claim will be reviewed under the Fourth Amendment's prohibition against unreasonable seizures.

   So let's dive into the Fourth Amendment and two basic issues it raises. The Fourth amendment to the U.S. Constitution ensures, "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." The U.S. Supreme Court stated in Tennessee versus Garner, "Whenever an officer restrains, the freedom of a person to walk away, he has seized that person." So right at the outset, we can glean two basic issues that the court will review under the Fourth Amendment. The first one: In shooting Dylan did the official seize him? And if the answer to that is, yes another question arises. Was the officer's act of shooting Dylan objectively reasonable?

   Let's take a look at each of these in the context of Dylan's case. First, was Dylan seized within the meaning of the Fourth Amendment? Depending on the case, the analysis here might be clear and obvious like it is in claims of excessive force that arise out of police vehicular stops or arrests, which are clearly seizures, but it may be more complex in other contexts. Not all courts are in agreement about what constitutes a seizure. Several circuits, including the Eighth and Ninth Circuit hold that an officer's use of force on a person is a seizure even if the person could temporarily evade the police. Other circuits like the 10th Circuit disagree.

   Currently, a number of tests are used. The first test is: Did the officer by means of physical force or show of authority in a way restrain a person's liberty? That's the test from Terry versus Ohio in 1968. The second test is: Due to an officer's display of authority, did the person actually comply and would a reasonable person believe that he was not free to leave? That's the test from California versus Hodari D in 1991. And the third test to determine whether someone has been seized is: Did the government intentionally limit someone's freedom of movement? That's the test from Brower versus the County of Inyo in 1989. In light of the lack of clarity here, the U.S. Supreme Court is set to hear arguments in its October 2020 term in the case of Torres versus Madrid, an appeal from the 10th Circuit in which the central issue is whether an unsuccessful attempt to detain someone through force is a seizure under the Fourth Amendment?

   In Torres officers saw the respondent outside a parked vehicle in a parking lot where police were seeking to arrest a woman involved in an organized crime ring. Upon approach this woman got in the car and acted erratically. Apparently she was tripping out from methamphetamine usage and believed officers to be carjackers. When the officer pulled the door handle, she put the car into drive and began moving it. Believing they would be hit by the car the officers brandished their guns, and the officer fired at her. Torres was shot twice. After colliding with another car she exited the vehicle and laid on the ground for a moment and during the psychotic episode, she then got up and stole an idling vehicle and succeeded in invading police driving 75 miles to a hospital.

   Torres was then airlifted to another hospital where she was finally arrested. Torres brought suit under Section 1983 for excessive force and lost because the court found that she had not been seized within the meaning of the Fourth Amendment. The 10th Circuit agreed stating that, "Continued flight after being shot by police negates a Fourth Amendment excessive force claim because a seizure requires restraint of one's freedom of movement." In affirming the lower court's decision the 10th Circuit indicated that, "An officer's intentional shooting of a suspect does not affect a seizure unless the gunshot terminates the suspect's movement or otherwise causes the government to have physical control over him."

   In its brief to the U.S. Supreme Court Torres argues that the court should distinguish between two types of seizures, one's effectuated by force, and one's effectuated by show of authority. Torres argues that in cases of force a seizure for the purpose of the Fourth Amendment occurs at the moment the force is exerted and submission is not required. I've included links to the Supreme Court briefs on both sides in the court materials.

   In Dylan's case, if Dylan had not fallen prostrate on the ground when he was shot and instead fled, say to his pickup truck and gave the officer's chase until he was later apprehended, we'd have a seizure issue. However, that's not the case in our hypothetical. In Dylan's case, it's clear that the officer's use of their firearms on Dylan took away his freedom of movement as he was left prostrate on the ground.

   To be sure in Tennessee versus Garner the U.S. Supreme Court declared that, "There can be no question that apprehension by the use of deadly force is a seizure." So it's pretty clear that Dylan was seized for Fourth Amendment purposes. Now, remember if you answer yes to the seizure question, the next question is: Was the officer's use of force on Dylan objectively reasonable?

   All right get ready for the big, heavy lifting case law. In the context of deadly force in Tennessee versus Garner U.S. Supreme Court case from 1985, the U.S. Supreme Court addressed the issue of the constitutionality of police use of deadly force to catch an unarmed suspect. The court found that, "Such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." In this case, police in a Tennessee municipality responded to a call about a burglary. On the scene officers saw a young African American teenager age 15 trying to escape over a fence.

   Officers noticed that he was unarmed. After the officer told the teenager to stop the teenager continued his escape. The officer fired a gunshot striking the teenager in the back of the head. He later died at the hospital. Found on the victim's person was $10 and a stolen purse. The victim's family sued under Section 1983, alleging various violations of the victim's constitutional rights, including the Fourth Amendment. The trial and appellate courts found that the officer had acted in good faith on a Tennessee statute, allowing officers to take all necessary means to arrest a fleeing suspect and that the officer's actions here were constitutional.

   In a 6-3 decision the U.S. Supreme Court reversed. First swiftly finding that the teenager had been seized by the fatal gunshot wound. Turning to the reasonableness inquiry the court noted that, "Determining reasonableness requires looking at the totality of the circumstances and balancing the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests, alleged to justify the intrusion." To assess the nature and quality of an intrusion. The court indicated that when the force is exerted and how the force is applied are some considerations in the totality of circumstances. In the case of deadly force, the court noted that the suspect's fundamental interest in his own life need not be elaborated upon. The court noted that, "The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that the mechanism will not be set in motion."

   So the court was unpersuaded that shooting non-dangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life. The court found that if an officer has probable cause to believe that the person, "Poses a threat of serious physical harm, either to the officers or others," it would be reasonable to use deadly force to thwart escape. So if someone threatens an officer with a weapon or there's probable cause to think the person committed a crime that involved actual or threatened serious harm or death, an officer can use deadly force if it's necessary to prevent escape and if a warning is given, assuming it's feasible to give one.

   The court found that the facts didn't justify deadly force in that case. The teenager was young, slight and unarmed. So officers couldn't have reasonably believed that he was a serious threat. Even if officers had probable cause to arrest the teenager for burglary, that wasn't alone enough. There wasn't anything to give the officer probable cause that the teenager could cause serious harm or death. In fact, the officers correctly believed the teenager was unarmed and defenseless.

   Let's just apply this to Dylan's case for a moment. Whereas in Garner, the officers couldn't have reasonably believed the teenager was a major threat, in Dylan's case, police were already searching for someone with a truck and a gun. When officers encountered Dylan, he allegedly moved toward them quickly and reached behind his back. Officers allegedly warned him before shooting him twice. And even after Dylan was on the ground news reports indicated that Dylan was allegedly reaching under his shirt at which point officers shot him again twice. From the officer's point of view, the totality of the circumstances seems to suggest that it would have been reasonable to believe that Dylan was a threat of serious harm to officers. Given Dylan's refusal to comply, erratic behavior and suspicion of being armed it would likely have been reasonable for officers to believe he was concealing a weapon and intended to use it on them.

   Now, four years later in Graham versus Connor, a 1989 Supreme Court case, the Supreme Court confronted the Garner rule again to determine whether it applies in non-deadly force cases. In Graham, the plaintiff experienced a broken foot, cuts, bruising and an injured shoulder as a result of an investigatory stop by police as the plaintiff was rushing around trying to locate sugar, to prevent onset of diabetic shock. When police stopped him, the plaintiff passed out temporarily and he was subsequently handcuffed deprived of orange juice brought by a friend, thrown against the cruiser and later released when officers learned he hadn't done anything wrong. The District Court applying a four-part substantive due process test often used at the time in 1983 claims found the officer's use of force was appropriate under the circumstances. The Court of Appeals affirmed.

   In analyzing the 1983 claim the Supreme Court declared that, "All claims that law enforcement officers have used excessive force, deadly or not, in the context of an arrest investigatory stop or other seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard." The court's stressed that, "Reasonableness involves a consideration of facts and circumstances of each case, including: the severity of the crime at issue, whether the 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 by flight."

   The circumstances are to be viewed from the perspective of an officer on the scene though, without regard to their intent or underlying motivation. Because the lower court had used a different standard the court reversed the lower court's decision. Before we go any further let's again, quickly apply this to Dylan's case. The central issue in Dylan's case per the Graham decision would be whether in light of the facts and circumstances from the point of view of the officers that day in Fresno, but without regard to their underlying intent or motivation, whether the officers act of shooting Dylan at least twice when he was lying prostrate were objectively reasonable. Under Graham to determine this a court would look to the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of officers or others, and whether the suspect was actively resisting arrest or attempting to flee.

   Now, in Dylan's case, it's not clear what the severity of the crime at issue would've been. Officers were only responding to a call that someone was in a truck with a gun. Based on the facts alleged by officers it appears that Dylan posed an immediate threat. At least after the officers issued a warning, Dylan failed to respond and the two initial shots were fired. What's more problematic are the two shots when Dylan was prorated on the ground. Was he still an immediate threat at that point? Was he actively resisting arrest at that point? As his lawyer per Graham you'd probably want to zero in on the reasonableness of officers conduct at that point in time.

   Now Garner and Graham read together did cause confusion in lower courts. Although the Supreme Court prescribed a reasonableness test in all cases of force, the Garner court required a special inquiry in uses of deadly force while Graham prescribed a 3-factor test for all kinds of force.

   So lower courts tended to apply one of the following three tests depending on the law in that circuit. Test one: If deadly force was used, assess whether the suspect posed a threat to officers or others to determine reasonableness. That's Garner. Test two: If deadly force was used, use the 3-factor test to determine reasonableness that applies to all uses of force. That's Graham. Or test three: If non-deadly force was used, use the 3-factor test to determine reasonableness. That's Graham.

   Nonetheless, in Scott versus Harris, the U.S. Supreme Court case in 2007, the court rejected those rigid tests and adopted a more free-form test of reasonableness. In this case, the respondent initiated a 75 mile per hour chase with police. In an attempt to stop the vehicle an officer rammed his bumper into the respondent's vehicle, causing him to swerve off the road, flip over and crash. The respondent rendered a quadriplegic filed suit under Section 1983 in a claim of excessive force under the Fourth Amendment. The court rejected the rigid interpretation of Garner and found that regardless of whether the officer's actions were deadly, the ultimate question is whether those actions were reasonable.

   In determining reasonableness, the court side stepped Garner and Graham adopting a more free-form approach. The court balanced the nature and quality of the intrusion on the respondent's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion and considering the risk of serious harm that the officer's actions posed to the respondent in light of the threat to the public that the officer was trying to eliminate. This was a case in which someone posed serious harm to a great number of people. And this weighed against serious harm to a single person.

   In this kind of situation the Supreme Court indicated that the number of lives at risk and the relative culpability are both factors. The great harm to innocent people and the culpability of the respondent in that case who put himself in great danger by giving chase caused the court to find the officer's conduct reasonable.

   In Dylan's case, if the incident occurred in a high-density, residential or commercial area involving bystanders, so that a number of lives would've been at risk in addition to officers lives and if officers knew more about what to expect from Dylan's behavior like a propensity for violence, this would certainly mitigate in favor of a finding of reasonableness under Scott's free-form approach. It would certainly add another layer to the government's interest.

   Today lower courts have various interpretations of the Garner, Graham and Scott line of cases. Some courts use a multifactor test and others take a more flexible approach as in Scott. However, across all courts, a number of things are true about assessing excessive force in Dylan's case. If the Fresno officer's use of force occurred during an arrest, investigatory stop or other seizure Dylan's case falls within the ambit of the Fourth Amendment's prohibition against unreasonable seizures. Dylan will need to prove that the officer's act of shooting him was objectively unreasonable in consideration of the totality of the circumstances. Dylan will further need to frame the reasonableness argument from the perspective of the reasonable officer on the scene. Their subjective motivations would be irrelevant. So if Dylan had a criminal history that was unknown to the officers, that would be irrelevant. If Dylan had traces of cocaine and alcohol in his system, which he did according to news reports, this would also be irrelevant. Also Dylan's argument will need to involve a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.

   Dylan will likely be up against a general deference to the officers in as much as they are often forced to make split second decisions or judgements, intense, uncertain, and rapidly evolving situations. Even if officers had probable cause to arrest Dylan, it won't be enough to overcome a finding of excessive force. Now, imagine as Dylan's attorney, you begin to wade into the Fourth Amendment case law and realize how huge it is. Here are a few shortcuts or common threads and trends among the cases. As a proviso these are generalizations. Determining a Fourth Amendment violation is highly dependent on the facts of the individual's case, as I've mentioned. So these aren't legal ideas that you would rely on necessarily when you develop Dylan's case or your own. If Dylan was carrying a deadly weapon and from the officer's point of view was handling it in a threatening manner, the court would be more likely to find that deadly force was permissible.

   For example, if Dylan was being frisked and he had abruptly pulled out a gun from his midsection, deadly force would likely have been reasonable. But if Dylan was carrying a shotgun, it's generally not just the guns presence that makes deadly force reasonable. It's the threat posed by the possession of a firearm that justifies the use of force. For example, if Dylan was actually holding a shotgun to the ground with his finger noticeably off the trigger and wasn't making any threatening or rapid moves, and he was complying with officers, the threat wouldn't exist. Since Dylan didn't actually have a weapon though, but officers thought he'd did and posed a threat with it a court could find that deadly force was justified if the officer's belief was reasonable. There are a number of cases out there that can be analogized to Dylan's case on the defense side.

   In one 11th Circuit case officers who had been physically attacked by a suspect beforehand, saw the suspect looking under his car seat for what appeared to be a weapon. The court upheld the reasonableness of the officer's fatal shooting of the suspect, despite finding no weapon afterwards. That's the case of Harrell versus Decatur County, an 11th Circuit, 1994 case. But Dylan's case is complicated by the lack of knowledge about Dylan's propensity for violence beforehand. Their lack of knowledge about any crime he was suspected of committing and the lack of factual development around what occurred when shots were fired when Dylan was already on the ground. The court deciding Dylan's case may be loath to question the officer's judgment in the circumstances. One lower federal court declared that, "The standard contains a built-in measure of deference to the officers on the spot judgment about the level of force necessary in light of the circumstances of the particular case."

   Finally, confusion abounds about what SCOTUS deadly force decisions mean. What test applies is highly dependent on the interpretations of the circuit court in which the district court sits. So if you're an attorney representing Dylan, you should review Fourth Amendment excessive force cases carefully, particularly those cases within the Ninth Circuit. So that's our journey through Fourth Amendment analysis in the context of Dylan's hypothetical 1983 claim.

   Let's now take a look at a second big issue you'll probably face as Dylan's attorney. Remember that Dylan wants to sue the officers, but also the City of Fresno and Fresno Police Department. So issue two: Will Dylan be able to establish municipal liability by showing that the police conduct was effectively carrying out a municipal policy practice or decision? Section 1983 allows suits against any person who acted under color of state law. This includes state and local officials sued in their personal capacities. Local officials can include peace officers, state police, sheriffs, deputies, and jailers, even a parking officer was found liable under Section 1983. But what about going after with the deeper pockets of municipal entities? As a general rule, the doctrine of respondeat superior doesn't apply to 1983 claims, but in Monell versus the Department of Social Services, a U.S. Supreme Court case, I mentioned previously from 2006, the Supreme Court found a municipality can be people for the purpose of Section 1983, but not if it's just the employer of someone who violated someone's rights. To be held liable, a municipality must effectively cause the violation of a person's constitutional rights.

   The U.S. Supreme Court stated, "When execution of a government's policy or custom whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy inflicts the injury, the government is liable under Section 1983." Per Monell there are four basic theories Dylan would have for bringing the City of Fresno and the Fresno Police Department into his Section 1983 suit. First, Dylan could argue that there's an unconstitutional municipal policy. Second Dylan could argue that there's an unconstitutional act done in furtherance of a municipal policy. For example, if there had been some action or decision by someone who had the final say on Fresno police policy. Third, Dylan could argue that the Fresno Police Department failed to train. A failure to train viewing the training program as a whole has to be so obvious and so likely to violate rights that the events a deliberate indifference to the rights of persons with whom the police have come into contact.

   One officer's training failure doesn't cut it. And the trainers failure to correctly implement the training doesn't cut it either. Look for a series of violations, forming a pattern under this theory. Dylan could argue that the City of Fresno or the Fresno Police Department municipality failed to supervise. Look for an obvious pattern of constitutional violations by officers that the municipality was aware of or had constructive notice of... So the municipality was willfully blind or deliberately indifferent to the violations. Now suppose the officers in Dylan's case were state troopers. Could Dylan sue the State of California and the California State Police? Per the U.S. Supreme Court's case of Will versus Michigan Department of State Police, a 1989 case, a person does not include states and state entities. Finally, issue three. Will Dylan be able to overcome a defense of qualified immunity, which would otherwise shield the individual officers from liability? Even if Dylan can prove that the officer's conduct was unconstitutional, he'll still have to show that their conduct violates clearly established statutory or constitutional rights of which a reasonable person would've known.

   Otherwise the officers will be shielded from liability under the doctrine of qualified immunity. Qualified immunity is actually very broad, "Protecting everyone except the plainly incompetent or those who knowingly violate the law," in the words of the Supreme Court. Stated another way the official would need to, "Violate clearly established federal law," to be subject to suit. In practice qualified immunity gives public officials breathing room to make reasonable, but mistaken judgements about open legal questions. Also it shields all but the plainly incompetent or those who knowingly violate the law. So in Dylan's case, if the officers asserted a qualified immunity defense to his 1983 excessive force claim, the officers would be shielded if at the time Dylan was shot, the law wouldn't have given those officers enough notice that shooting him in those circumstances and in that manner was unlawful. The court would look into whether the Fresno police officers reasonably should have known in light of clearly established law to the contrary.

   Now it wouldn't be enough for Dylan to argue that it's clearly established that the officers shouldn't use excessive force. He would have to get more specific. And if there's some question about what law applies to Dylan's circumstances, like if the court would reach different conclusions, depending on which test was applied for example, the officers may succeed in their immunity claim even if Dylan would actually win his constitutional claim. Qualified immunity is about, "The need to hold public officials accountable when they exercise power irresponsibly," on the one hand. And it's also about, "The need to shield officers from harassment, distraction and liability when they perform their duties reasonably," on the other. Also in terms of procedure of 1983 litigation qualified fight immunity is powerful asserting the defense will shape how the litigation proceeds. If issues of qualified immunity come up, they're generally dealt with at the beginning of the suit before the bulk of discovery has even been conducted.

   The doctrine also involves careful parsing because a plaintiff often adds multiple claims against multiple parties. Courts analyze the immunity issue for each claim and each defendant. No analysis en masse. Also in the pretrial context, if a defendant's defense of qualified immunity is denied, they can appeal it immediately if the issue involves a legal question. The challenge with this is that pretrial appeals often involve factual issues and federal appeals courts often reject these kinds of pretrial appeals as fact based. Now how this doctrine gets applied is a bit complex and has some history to it. But we're going to try to keep it simple here. Here's the old way established in Saucier versus Katz in 2001. First, the court reviewed the complaint to assess if the facts viewed in a light most favorable to the plaintiff set forth the infringement of a constitutional right. If it didn't, that's it, no further inquiry, qualified immunity granted. If it did, then you proceed to the next question.

   The second question is, was that right clearly established when it all happened and whether the officer reasonably should have known that? The basic question here is whether an officer acted in a reasonable manner or unreasonably in the face of clearly established law. In considering whether the officer acted reasonably, subjective motivation and/or intent is irrelevant. Information learned in hindsight is irrelevant. Information the officer knew when they acted boom that's relevant but courts were [Spanish 00:55:02] mad about this process because it required litigating the constitutional claim first. So in 2009, the Supreme Court created a new way in Pearson versus Callahan. In that case, the court declared that courts, "Should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." So in Dylan's case, under Pearson, the court would have the discretion on whether to skip directly to the clearly established law analysis, or start from the constitutional question.

   It would likely be in Dylan's interest if the court decided the constitutional question first, and to that end, Dylan could invoke the Supreme Court's suggestion in Pearson that the Saucier court's old way of starting with a constitutional claim is best because it promotes the development of constitutional precedent. A lot of this would depend on case law within the Ninth Circuit, of course, but overall, I keep circling back to those two shots fired when Dylan was already prostrate on the ground. Without engaging in a full analysis that conduct in particular tends to cross over into conduct the law clearly prohibits and would give the officer sufficient notice of and for which Dylan would likely be able to successfully plead a Fourth Amendment excessive force claim. These may be one reason why the City of Fresno eventually paid the family of Dylan Noble $2.8 million to settle their 1983 claim.

   It's worth noting that as part of the settlement, the city agreed to change police training policy. According to a city press release police officers will undergo additional training on high-risk traffic stops, which will include how to safely approach a wounded suspect and alternatives to be considered when addressing a diminished threat.

   Now, a hot topic. Now there are many hot topics out there concerning police use of excessive force, like the issue of handcuffing, pepper spray, canines, tasers, tear gas, and chokeholds. Other important developments include the impact that smartphone video on social media has had on excessive force claims. These all raise important issues about how far the government can go in its complex, but important capacity as police power.

   But I'm going to go briefly into a hot topic that is implicated by Dylan Noble's case police bodycams. On July 13th, 2016, almost a month after Dylan Noble was killed police released videos of officers body cameras. The videos show in graphic detail the officers shooting Dylan after they pulled him over at a gas station. Once released, the disturbing vide made the rounds on social media and garnered much public attention. bodycams are a highly debated topic. While research shows that bodycams decrease the number of excessive force complaints against police, academics and advocates have raised concerns with video tampering, privacy, and the potential impact these videos can have on juries.

   Now let's take a look at the latter concern, the potential impact on juries. The bodycam video in Dylan Noble's case is shocking and disturbing. It's pretty clear that the bodycam footage would have a big impact in the courtroom. There's empirical evidence now to back that up, in fact. In a 2019 law review article, Mitch Zamoff conducted a study comparing excessive force cases without bodycam evidence to excessive force cases with bodycam evidence from the same federal district courts during the same period of time. Bodycam evidence improves defendant's likelihood of success on summary judgment in excessive force cases only if the video is complete and defendants are actually more likely to prevail on summary judgment in excessive force cases without any bodycam video evidence than in cases with a partial bodycam video. Also, the author found that summary judgment motions are filed and adjudicated more quickly in excessive force cases with bodycam videos, especially complete videos than in cases without bodycam evidence.

   While bodycam video footage certainly adds another layer of complexity to a 1983 claim. It also can help efficientize the litigation process. As the study author concludes, "Bodycam videos are meaningfully expediting the litigation and adjudication of excessive force lawsuits." This means that both sides can benefit from the addition of that evidence, despite the controversy surrounding it. Thank you for joining us for this introduction to Excessive Force and the Fourth Amendment by Quimbee. Thanks for choosing Quimbee for your CLE needs and please join us again soon.

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