Police Misconduct: Section 1983 Violations, Proving Claims Against the Government

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1 Police Misconduct: Section 1983 Violations, Proving Claims Against the Government by Antonio M. Romanucci & Angela Kurtz Until approximately 20 years ago, video recordings of police misconduct were rarely available. Dash cams were just starting to be recognized as equipment that could assist police officers, and personal video cameras on the persons of police officers were unheard of. Along with the technological boom of the 90 s came great strides in audio and video recording capabilities, and along with that came a television show called COPS and cable television channel SPIKE. These entertainment channels purportedly follow well intentioned police officers doing their business in some of the nation s most dangerous cities and neighborhoods. Typically, because of editorial privilege, police misconduct is rarely, if ever shown. Instead, it is always a belligerent suspect who is shown fighting or spitting or resisting against police officers, who invariably seem to use the correct tactics, employ the optimum demeanor, and use the right amount of force necessary to control the worst of the country s criminal offenders. COPS is as much like real life as LA Law is to how lawyers practice in the courtroom. The reality of the street is much different than television, and the conditioning that these shows have instilled in the minds of our nation s jury pool is significant. Attorneys facing police misconduct cases must carefully plan their cases around this conditioning and must then deconstruct it during voir dire and throughout the course of trial. There is a very real fear that your jury will perceive your police officer defendant as a reasonable actor by default, even if all other evidence contradicts their story. Indeed, if that becomes your reality at trial, there is a good chance that you will lose your case despite your best efforts during opening statements and closing arguments. Thus, careful deconstruction of this default is crucial, and the key to successfully litigating a claim against the government is making all the right decisions from the moment your client first contacts you. Pre-Suit Your first thought immediately after signing a case should be how to prove it. Obviously you should obtain the police reports, gather witness statements, preserve surveillance camera footage, ensure that any weapons or other physical evidence is maintained, send out preservation letters, take pictures of the scene, and obtain any relevant medical records. However, many of these items and possibly other evidence can be lost forever if not preserved quickly. Businesses tape over surveillance cameras. Witnesses move and change their phone numbers. Police officers might destroy, lose, or return evidence. Because a lot of the necessary evidence is perishable, it is imperative that you act quickly to gather and maintain as much of it as you can. Less obviously, you should also spend a considerable amount of time researching the governmental bodies involved in the incident. To begin this task, you need to know which agencies your client came into contact with. Was it a city police officer? A county deputy? A federal agent? Were there multiple agencies involved? Often, a client will simply say that the police used excessive force; however, finding out who the police are is not as simple as looking to the city or village agency where the incident occurred. Almost always, there are multiple governmental bodies with concurrent jurisdiction over an area. Further, even if one body is the guilty body, it is not uncommon for multiple agencies to respond to an incident. More than one response means that more than one agency can have valuable information, even if they are not necessarily a defendant. In addition, you should also research the internal structure of each body involved. Knowing how the municipality is structured and familiarizing yourself with each police department s hierarchy is crucial to understanding the case, identifying the responsible parties, and naming defendants. You must understand who the rule-makers are and who enforces those rules. You should also familiarize yourself with how reports are drafted, categorized, and approved up the chain of command. This is also true with how complaints of misconduct against police officers are made, categorized, and addressed by the department. Ignorance of these systems will cripple you in discovery. If you don t ask for the documents, and if you don t know that the documents exist, the defendants aren t likely to volunteer the information to you. What is Section 1983? Now that you ve gathered the 40 Trial Journal Volume 17, Number 1 Winter 2015

2 facts and as much evidence as possible, you re ready to file your case. To do this, a basic understanding of the available claims is vital because you must tailor your complaint to avoid the inevitable motion to dismiss or motion for summary judgment. As part of the Civil Rights Act of 1871, the United States Congress enacted 42 U.S.C to address civil rights violations that were occurring systematically against citizens by their state and local governments. 1 That Act, as it reads today, provides for a private cause of action against every person acting under color of law who causes a deprivation of any rights, privileges, or immunities secured by the Constitution and laws. 2 This basic cause of action seems simple on its face; however, every aspect of this definition has been subjected to an overabundance of interpretations, primarily in the form of thousands of published judicial opinions and even more unpublished ones. Navigating the judicially-created labyrinth can seem daunting, but each case can be broken down into familiar, perhaps even cliché, manageable steps: identifying the who, the what, and the when. Who are your defendants? Who did Congress intend to subject to liability when it wrote every person? An obvious answer is the individuals employed by government agencies who might abuse their power. In the context of a police misconduct case, this includes police officers, deputies, correctional officers, and other department employees, as long as they are acting pursuant to the authority of their office. Every person can also include policy-makers and heads of departments, such as chiefs of police or county sheriffs, who establish the official policy for a governmental body. 3 Further, a municipality, such as a city or county, can also sometimes be a named defendant in a 1983 action. 4 You must be sure, however, that the defendant is acting pursuant to some governmental authority, even if they are abusing it, and not acting as a private citizen. 5 Individuals who are not employed by a governmental body may also incur liability for constitutional deprivations. 6 Claims against private individuals must still be premised on the deprivation of a U.S. Constitutional right which resulted from the private individual acting under color of law. 7 To prevail, there must be a showing of a concerted effort between a state actor and that individual. 8 For example, a private individual acting in concert with a corrupt judge may subject the private individual to 1983 liability. 9 However, due to the principles of sovereign immunity embodied within the 11 th Amendment to the U.S. Constitution, states themselves cannot be named in a 1983 lawsuit. 10 Likewise, state departments that operate only as an arm of the state cannot be named. 11 Heads of state departments in their official capacity can be named, but only if a judgment against them would not operate as a judgment against the state itself. 12 Municipalities, on the other hand, are not protected by the 11 th police misconduct continued on page 42 Volume 17, Number 1 Winter 2015 Trial Journal 41

3 police misconduct continued from page 41 Amendment and can be held directly liable. 13 What claims can you bring under 1983? Any depravation of a federal constitutional right, generally speaking, is actionable under In the realm of police misconduct, the most common sources of these rights are the 4 th and 8th Amendments (subsequently made applicable to state actors by the 14 th Amendment). 14 However, a very important difference between 1983 litigation and state law is that there is no respondeat superior liability for constitutional depravations. 15 Thus, any claims pled must be targeted at the defendant s own conduct, not the acts of others. Citizens are protected from unreasonable searches or seizures by the 4 th Amendment. 16 Excessive force and false arrest claims are brought under that amendment as unreasonable seizures. 17 In order to prove an excessive force claim, you must show that a law enforcement official acted unreasonably under the totality of the circumstances. 18 An important point to remember is that the officer s subjective intent is irrelevant. 19 Officers are usually trained on a variation of an escalation/de-escalation use of force model, which permits the officer to use a greater amount of physical force when a subject is also increasing their physical resistance to lawful commands. Importantly, officers should likewise decrease the use of physical force if the subject becomes compliant. False arrest claims can likewise encompass a range of scenarios. Under Terry v. Ohio and its progeny, courts have established a sliding scale to determine when a detention is reasonable at all and, if a detention is justified, what kind of detention is allowed under the circumstances. 20 Police must have a reasonable and articulable suspicion of criminal activity to justify a brief investigatory stop, such as pulling a car over onto the side of the road or stopping a pedestrian on a sidewalk. 21 Courts have upheld false arrest claims when an officer acted only on a hunch, or only because someone was found in a high crime area. 22 Further, during a Terry stop, officers are permitted to frisk a subject, but only for the limited purpose of officer safety. 23 Of course, in order to justify a full arrest, an officer must have probable cause that a crime was committed by the individual. 24 Even if you are not making a claim for false arrest, understanding these principles is extremely helpful in excessive force cases because there are different standards of permissible use of force at different points in the sliding scale. Any claim regarding a failure to provide sufficient medical care is brought under the 8th Amendment. In order to prove this type of claim, you must prove that the officers or governmental agency demonstrated a deliberate indifference to the clear medical needs of your client. 25 Medical needs also include psychological needs. For example, a prison guard who has a reason to know that a prison inmate is suicidal would be deliberately indifferent to that inmate s medical needs if the guard left the inmate unsupervised and without psychological care. 26 As mentioned earlier, governmental actors are subject to direct liability only for their own actions. However, an individual may be liable if they are aware of the unconstitutional conduct, are able to intervene to stop or mitigate it, and fail to do so. 27 In addition, policymakers and department heads can be held liable, even if they weren t directly involved, if their policies or procedures, whether explicit or de facto, led to a constitutional violation. 28 In addition, department heads can also be liable for ratifying another individual s acts, essentially adopting those acts as their own. 29 Claims against police departments and policymakers are commonly referred to as Monell claims, an abbreviation for the United States Supreme Court case Monell v. Dept. of Social Services of New York. It was in this case that the Court interpreted person in the language of 42 U.S.C to include these categories of defendants. This case also provides for only direct liability of department heads for harms caused by their policies, completely extinguishing any constitutional respondeat superior liability. 30 The statute of limitations? Because Congress did not provide for a separate statute of limitations for claims under 1983, courts look to the general personal injury statute of limitations for the state in which the district court sits. 31 Because Illinois personal injury limitations period is 2 years, any 1983 claims filed in the federal district courts sitting in Illinois is also 2 years. 32 This is not the end of the inquiry, however. The next step is to determine when a cause of action accrued. In an excessive force case, this is straightforward; the clock starts running at the time of the use of force. 33 A little murkier is a deliberate indifference to medical needs case, which begins to run at the time that a defendant is on notice of the constitutional violation; however, the case may involve a continuing violation, and thus [the claim] can accrue for as long as a defendant knows about a prisoner s serious medical condition, has the power to provide treatment, and yet withholds treatment. 34 The most commonly confused statute of limitation, however, is for a false arrest claim. The statute of limitations for such a claim starts running at the time of the arrest, not at the date of release from prison. 35 Likewise, a false imprisonment claim begins running at the date of the probable cause hearing, regardless of how long the case takes to proceed to trial. 36 Thus, a client wishing to bring a false arrest or false imprisonment claim, regardless of the police misconduct continued on page Trial Journal Volume 17, Number 1 Winter 2015

4 police misconduct continued from page 42 pendency of criminal charges, must file his civil suit within two years or the claim is lost. 37 You ve Filed Your Complaint What s Next? Although you ve conducted an extensive pre-suit investigation, it s now time to re-do that investigation once more through formal discovery. First, you want to lock the defendants into an obligation to provide full and complete responses that you can use against them in depositions. Second, the information given to the public in an FOIA request is often less than complete; FOIA contains many exceptions to disclosure that formal discovery does not. Finally, some time has passed from your initial investigation, and you should update your file with new supplemental reports, results of testing done to physical evidence, recently-taken witness statements, and other new information. In addition to the above, you must receive in discovery a department s written policies and procedures. These are crucial to proving any 1983 case, and they are especially essential in Monell claims against policymakers and/or department heads. An unconstitutional policy can lead to direct Monell liability, and a failure to follow established policies can show an intent to violate your client s civil rights. You must also request any prior and subsequent citizen complaints against (1) the officers and (2) the department. A pattern of complaints can help lead to Monell liability or can establish a motive, plan, and intent on the part of the officer. Employment files are also useful documents, and they often contain statements on the officers applications for employment that you can use against them at trial. Further, you should begin identifying experts early in discovery. An expert in police procedures will be able to guide you into asking for documents, recordings, and evidence that are customarily maintained by police departments nationwide. They can also point to omissions in investigations, whether intentional or unintentional, and irregularities in reports that a lay person might not immediately see. They will also be able to help you identify which depositions to take. Ideally, you should be taking the depositions of every individual that was involved in any way with the incident and investigation. However, if there are limits to the number of depositions you can take, it is important to pinpoint the most important ones early on. Obviously, the defendants depositions are key. These are your best opportunities to find inconsistencies in the government s version of the incident. These depositions are also your time to walk each defendant through the department policies and procedures to obtain useful admissions. For example, you are deposing a defendant officer in a shooting case. The officer has stated that they discharged their weapon because your client pointed a gun at them. You would first get the officer to admit that it would be unconstitutional to shoot 44 Trial Journal Volume 17, Number 1 Winter 2015

5 an unarmed man who isn t posing a risk of death or great bodily harm to anyone. Then, you would further obtain an admission that shooting even an armed man, who is perhaps carrying a weapon in a holster and who isn t actively posing a danger to anyone else, is unconstitutional. Keep going until you match the fact scenario that closely mirrors your client s version of what happened. Another important deposition to take is the person in the governmental agency with the most knowledge of the policies, procedures, and training of the defendants. This person will establish a foundation through which you can paint a picture of what should have happened. You can also use this person to gain the same admissions as you obtained from your defendants. If there was either a criminal or internal investigation, you should depose the lead investigator. This person serves two purposes. Again, they will be knowledgeable about the rules that the defendant officers should have followed and with constitutional standards for police officers actions. You can revisit the admissions with this deponent as with the defendants. In addition, this person will be a fact witness. They can lay out the scene, verify party statements, talk about evidence, and complete the picture of the incident. Sometimes, they might be qualified and willing to give independent opinion testimony. Qualified Immunity Throughout the pleading and discovery process, you must gear your case to avoid the inevitable defenses of immunity. The most common defense of this type raised by law enforcement is qualified immunity. In order for the defendant to win a motion to dismiss or for summary judgment on qualified immunity grounds, the government agent must show either: (1) that no constitutional right was violated, or (2) even if a constitutional right was violated, the defendant was not on notice of the existence of the right because it was not clearly established at the time. 38 The existence of this defense makes pre-suit research imperative. Usually, it is fairly easy to identify whether a constitutional right has been violated. However, the next step is where many motions are lost, as a plaintiff must demonstrate that a reasonable officer in the defendant s shoes would have known that the actions the officer took were illegal. 39 Without a case on point, a plaintiff must argue logical inferences from previous cases in order to overcome this hurdle. If you have conducted thorough presuit legal research, it will be easier to tailor your deposition questions to fit into the legal framework of a clearlyestablished right. Trial Certainly, one can spend an inordinate amount of time discussing presentation of the police misconduct claim at trial, and the task can be overwhelming to attorneys not experienced in this area of the law. How do you get a lay jury to understand the complex legal principles involved in police misconduct continued on page 46 Volume 17, Number 1 Winter 2015 Trial Journal 45

6 police misconduct continued from page 45 Terry stops, uses of force, and when an officer has probable cause for arrest? How do you explain that the use of a Taser is not appropriate in your case when the jury has grown up watching COPS and similar TV shows? How to you make a jury sympathize with an alleged criminal? This is where the policies and procedures you obtained and questioned so many witnesses about provide an invaluable framework for your case. They will be your backbone, and they are written in a way that jurors can understand. You can fall back on what should have happened: what the correct method of handcuffing a suspect is, or what reports an officer should fill out after an incident, or what the procedure for getting an inmate medical help was at the time. Then, you can juxtapose what really occurred as a violation of those simple guidelines that were put in place for exactly this reason. A logical and simple approach to your presentation can be: (1) establish the rules the defendants should have followed through a competent witness, (2) lay out the facts of the incident through an independent witness (if available) or the investigator, (3) have an expert give opinions to tie up what should have happened to what actually did happen, and finally (4) prove your damages. Of course, each case is different and there is no one-sizefits-all method to litigation. However, following a straightforward structure is the best method to ensuring that your jury isn t confused by the conflicting accounts, the different standards applied at different times, and the smoke and mirrors that the defendants will put up. Endnotes 1 Monell v. Dept. of Social Services of New York, 436 U.S. 658, 665 (1978) U.S.C.A (West 1996). 3 Pembaur v. City of Cincinnati, 475 U.S. 469, (1986). 4 Monell, 436 U.S. at See Gibson v. City of Chicago, 910 F.2d 1510, 1519 (7 th Cir., 1990) (holding a police officer who was declared mentally unfit for duty by the department and who was stripped of his service weapon, badge, star, and police identification card was not acting under color of law despite the fact that officer was still employed by department). 6 Mark v. Furay, 769 F.2d 1266, 1273 (7 th Cir., 1985); Fries v. Hellsper, 146 F.3d 452, 457 (7 th Cir., 1998). See also Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970) ( Private persons, jointly engaged with state officials in the prohibited action, are acting under color of law for purposes of the statute. To act under color of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents. )(quoting U. S. v. Price, 383 U.S. 787, 794 (1966)). 7 Fries, 146 F.3d at Id. See also Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, (7th Cir. 2009). 9 Dennis v. Sparks, 449 U.S. 24, (1980). 10 Alabama v. Pugh, 438 U.S. 781, (1978)(per curiam). 11 Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). 12 Id. 13 Monell, 436 U.S.at Graham v. Connor, 490 U.S. 386, 394 (1989). The Fourth Amendment to the U.S. Constitution reads: 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. The Eighth Amendment reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 15 Monell, 436 U.S.at U.S.Cons. 4th Amend. 17 Graham, 490 U.S. at Id. at Phillips v. Community Ins. Corp., 678 F.3d 513, (7 th Cir., 2012). 20 See generally, Terry v. Ohio, 392 U.S. 1 (1968). 21 Id. at 33 (Harlan J, concurring); U.S. v. Riley, 493 F.3d 803, 808 (7 th Cir., 2007). 22 Terry, 392 U.S. at 27; Huff v. Reichert, 744 F.3d 999, 1005 (7th Cir. 2014)(holding that a car with out-ofstate plates driving on a stretch of highway known for drug trafficking is not enough to show particularized suspicion of criminal activity). 23 Terry, 392 U.S. at Maryland v. Pringle, 540 U.S. 366, (2003). 25 Estelle v. Gamble, 429 U.S. 97, (1976). 26 Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001). 27 Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). 28 Monell, 436 U.S. at City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)( If the authorized policymakers approve a subordinate s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final. ); see also Salvato v. Blair, 2014 WL (M.D. Fla. May 12, 2014). 30 Monell, 436 U.S. at Ray v. Maher, 662 F.3d 770, 773 (7th Cir. 2011). 32 Id. 33 Gonzalez v. Entress, 133 F.3d 551, 553 (7 th Cir., 1998). 34 Wilson v. Groze, 800 F. Supp. 2d 949, 955 (N.D. Ill. 2011)(citing Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001)). 35 Gonzalez, 133 F.3d at Wallace v. Kato, 549 U.S. 384, (2007). 37 Lynch v. Nolan, 598 F.Supp.2d 900, 903 (C.D.Ill. 2009)(citing Wallace, Trial Journal Volume 17, Number 1 Winter 2015

7 U.S. at ). 38 Pearson v. Callahan, 555 U.S. 223, (2009). 39 Saucier v. Katz, 533 U.S. 194, 202 (2001). Antonio Romanucci is a founding partner, principal and trial lawyer in the Chicago based tort litigation law firm of Romanucci & Blandin, LLC, which has successfully recovered over $250 million on behalf of victims. Antonio concentrates his practice in wrongful death and personal injury which includes police misconduct, aviation, and the representation of victims of sexual abuse. He has been named a Top 100 Super Lawyer for 10 straight years in Illinois, a Leading Lawyer since 2004, and has a perfect Martindale Hubble AV rating and an AVVO rating of 10/10 along with being named a Best Lawyer for 2013 by U.S. News and World Report. He has worked tirelessly in the community having served as president of the Midwest Brain Injury Clubhouse, Knapp Burn Foundation, Justinian Society of Lawyers and the Joint Civic Committee of Italian Americans. He serves on the Boards of the Illinois Trial Lawyers Association, American Association for Justice and America s public interest law firm, Public Justice. He is past Chair of AAJ s Motor Vehicle and Premises Litigation Group, Secretary of the Brain Injury Litigation Group and the founding Chair of the Police Misconduct Litigation Group. He is a frequent lecturer and moderator across the country on the topics of litigation and jury selection. Antonio has been involved in many cases that are newsworthy and changed policies and procedures across corporate America, such as the Maine West High School sexual abuse scandal, the Jenni Rivera plane crash outside of Monterrey, Mexico, the metal baseball bat litigation and numerous other police misconduct cases, product safety recalls and catastrophic injuries across the country. He is especially proud of founding the Children s Endowment Fund, the charitable arm of the Justinian Society of Lawyers, whose sole mission is to grant dollars to underprivileged or disabled children regardless of race, ethnicity or religion. Since inception the CEF has granted in excess of $65,000 and has made a profound impact on the children it serves by saving lives because of early interventional medical care that otherwise would not have been received. He graduated from Fenwick High School in 1978, University of Wisconsin Madison in 1982 and the John Marshall Law School in He has run multiple Chicago Marathons and participated in numerous half marathons across the country as well as many duathlons and is a competitively ranked A club racquetball player. Antonio is the proud parent of Elizabeth, a graduate of Florida Golf Coast University, and John who is currently a junior at Indiana University. While growing up on the west side of Chicago, Angela Kurtz has always known that she wanted to dedicate her life to helping people in need. While in law school, she volunteered at a variety of legal aid organizations, assisting the public in navigating often murky areas of legal procedure and giving lectures to youth about the law and civil rights. After her father sustained severe and permanent injuries in a head-on auto collision, her dedication and passion for helping people led her definitively into a career in personal injury law. Hired by Romanucci & Blandin as a law clerk in 2012 and promoted to associate attorney in 2013, Angela has worked in all aspects of litigation in a variety of personal injury cases, including auto accident cases, wrongful death cases, premises liability cases, dram shop cases, bullying and school cases, and police misconduct cases. In her career, she has also co-authored legal articles written for a national audience and entered appearances on cases in multiple jurisdictions. Recently, Angela participated in a two-week jury trial in the Federal District Court for the Middle District of Florida involving the wrongful shooting and tasing of an unarmed man. The jury returned a verdict in excess of $2 million for the family and estate. How can YOU GET INVOLVED in ITLA? Take advantage of the many membership benefi ts included with your ITLA membership. - AMICUS INVOLVEMENT - The Amicus Curiae Committee offers support for members with signifi cant cases by fi ling briefs on issues of major importance to Illinois citizens. The extensive volunteer efforts of the Amicus Committee fi le friend of the court briefs at the appellate and supreme court levels. If you need support on a case or want to volunteer your time as an Amicus Committee member, contact the ITLA offi ce. Volume 17, Number 1 Winter 2015 Trial Journal 47

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