Chapter 2
Remedies for Constitutional
Violations
Copyright © Allyn & Bacon
2007
Introduction: Remedies for
Constitutional Rights Violations
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A remedy is a method of rectifying wrongdoing
Extralegal remedies are those conducted outside
the legal process (e.g., vigilantism)
Legal remedies are made available by law, court
decisions, or police agency policies and
procedures
This chapter focuses on legal remedies
The most common remedy in criminal procedure
is the exclusionary rule
Others are lawsuits, complaints, and prosecution
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I. CIVIL REMEDIES
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Civil remedies are lawsuits
Damage suits=lawsuits where $ is sought
Injunctive relief=lawsuits where one seeks to
bring injurious action to a halt
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A. 42 U.S.C. Section 1983: Liability
of State Officials
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42 U.S.C. Section 1983 (a.k.a. Section 1983) is
a statute providing for liability of government
officials
Section 1983 enjoyed a resurgence in Monroe v.
Pape (1961)
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1. Color of Law
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Defendant must act under color of law for a
Section 1983 claim to succeed
Color of law applies when a police officer:
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Identifies himself or herself as an officer
Performs criminal investigations
Files official police documents
Makes an arrest
Invokes police powers
Settles personal vendettas with police power
Displays weapons or police equipment
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2. Constitutional Violation
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Defendant must commit a constitutional
violation for a Section 1983 lawsuit to succeed
A specific constitutional provision must be
violated (e.g., the Fourth Amendment)
Culpability is also necessary
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3. Theories of Liability
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Supervisory liability
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Municipal/county liability
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An affirmative link is necessary
Policy or custom
Failure to train
Individual liability
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Most Section 1983 lawsuits against police officers
invoke the Fourth and/or Fourteenth Amendments
Different culpability standards exist for the Fourth
Amendment and for Fourteenth Amendment
substantive and procedural due process
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B. Bivens Claims against Federal
Officials
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In Bivens v. Six Unknown Named Agents (1971),
the Supreme Court held that federal officers can
be sued under Section 1983
Bivens is limited to federal law enforcement
officers
Other federal officials enjoy absolute immunity
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C. Defenses to Section 1983 Liability
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Two defenses to Section 1983 liability exist:
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Sovereign immunity
Qualified immunity
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1. Sovereign Immunity
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The 11th Amendment protects states and state
officials in their official capacity
Lawsuits against other government employees
and lower-level units of government are
acceptable
11th Amendment only limits jurisdiction of the
federal courts
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2. Qualified Immunity
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A judicially-created defense
Objective reasonableness standard used
Qualified immunity does not apply if a defendant
violates a clearly established right of which a
reasonable person would have known (Harlow v.
Fitzgerald, 1982)
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D. State Tort Liability
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Applies when Section 1983 does not
Intentional torts require intent to cause injury or
damage
Negligence torts are more common and require
showing:
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Legal duty
Breach of duty
Proximate causation
Actual damage or injury
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1. Defenses against State Tort
Liability
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Officers sued under state tort law are protected
from the “public duty doctrine”:
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Contributory negligence
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Who is to blame?
Assumption of risk
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Officer shows plaintiff contributed
Comparative negligence
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Police protection is owed to the public, not individuals
Plaintiff assumed risk
Sudden peril
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Split-second decisions are necessary
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II. CRIMINAL REMEDIES
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Federal and state statutes provide remedies for
police misconduct
Most laws that apply to ordinary citizens also
apply to police officers
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A. Federal Law
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18 U.S.C Section 242 is to criminal liability what
Section 1983 is to civil liability
Other federal statutes exist as well
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B. State Law
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Criminal liability can extend to police officers for
almost any offense
Police officers enjoy immunity from criminal
liability for some “law violations” if they are
committed justifiably as part of their duties
(e.g., justifiable shooting)
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III. NONJUDICIAL REMEDIES
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Three nonjudicial remedies can be identified:
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Internal review
Civilian review
Mediation
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A. Internal Review
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Police departments review complaints internally
Internal affairs falls into this category
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B. Civilian Review
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Citizens are involved in reviewing complaints of
misconduct
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1. Varieties of Civilian Review
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There are three identified forms of civilian review
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Civilian review (strongest)
Civilian input (middle)
Civilian monitor (weakest)
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C. Mediation
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An objective third-party resolves grievances
between police and complainants
Ombudsman system fits here
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IV. THE EXCLUSIONARY RULE
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A rule of exclusion
Provides that evidence obtained in violation of
the Constitution cannot be used in a criminal
proceeding to prove guilt
Found nowhere in the Constitution
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A. The Rule and Its History
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Rule first recognized in Boyd v. United States (1886) and
Weeks v. United States (1914)
In Silverthorne Lumber Co. v. United States (1920), the
Court recognized that the Fourth Amendment is a sham
without an enforcement mechanism
Elkins v. United States (1960) scrapped the silver platter
doctrine
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Permitted use of evidence in federal court that had been
obtained illegally by state officials
Rule applied to the states in Mapp v. Ohio (1961)
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1. Applicability of the Rule beyond the
Fourth Amendment
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There is debate about the scope of the
exclusionary rule
The perspective taken here is that it applies not
only to the Fourth Amendment, but the Fifth,
Sixth, and others
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2. Arguments for and against the
Rule
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Critics believe that the rule:
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Does not deter misconduct
Excludes reliable evidence
Rule creates public cynicism
Rule punishes innocent citizens
Should be abandoned in favor of other remedies
Supporters believe that the rule:
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Deters misconduct
Is rarely applied
Is not cause for public cynicism
Is desirable because alternatives are ineffective
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3. When the Rule Does Not Apply
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The exclusionary rule does not apply in:
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Grand jury investigations
Habeas corpus proceedings
Parole revocation hearing
Civil actions brought by the IRS
Deportation hearings
Most civil asset forfeiture proceedings
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4. Exceptions to the Rule
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Good faith exception:
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Created in Massachusetts v. Sheppard and United
States v. Leon
Provides protection for honest, good faith mistakes
Not limited strictly to police mistakes
Impeachment exception:
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Prosecution can use unconstitutionally-obtained
evidence to impeach a witness
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B. The “Fruit of the Poisonous Tree”
Doctrine
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Created in Silverthorne Lumber Co. v. United
States
Defined: The exclusionary rule applies not only
to evidence obtained as a direct result of a
constitutional rights violation, but also to
evidence indirectly derived there from
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1. Exceptions to the Doctrine
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Attenuation/purged taint
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Independent source
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Evidence admissible if “taint is purged”
Factors considered include whether Miranda rights were
read, temporal proximity, intervening events, and
flagrancy of initial misconduct
Evidence admissible if obtained by neutral third party
Inevitable discovery
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Evidence admissible if it would have been found
anyway
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