Civil Liability Issues:
An Exercise in Core
Constitutional Principles
New Police Attorneys’ School
Legal Officers’ Section
IACP 2003
Mark Newbold
Deputy City Attorney-Police
Charlotte-Mecklenburg Police Department
“Passive Protest” - Video
“Passive Protest”
Plaintiff’s Group
 Identify potential plaintiffs
 Identify potential federal cause(s) of
action
 Identify defendant(s)
Defendant’s Group
 What steps would you take to prepare
for potential litigation?
 Identify Core Constitutional Issues.
1st Amendment
 “Congress shall make no law . . .
Abridging the freedom of speech; or the
right of people peaceably to assemble,
and to petition the government for a
redress of grievances.”
4th Amendment
 “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
and affirmation, and particularly describing the
place to be searched, and the person or things
to be seized.”
14th Amendment Due Process
 . . . “nor shall any state deprive any
person of life, liberty, or property . . .”


Procedural Due Process
Substantive Due Process
Core Constitutional Principles
Freedom of Expression
“Free trade of ideas”
1st
14th
Freedom From Arbitrary
Governmental Action
4th
Security in persons, houses
papers and effects
Legitimate Governmental Interests
1st
Reasonable Time
Place and
Manner
4th
Reasonable Search and Seizure
14th
Due Process
Essential Balancing
 Individual
Constitutional
Protections
Legitimate
Government
Interests
Fourth Amendment Analysis
 Is there a Seizure ?



[B]y means of physical force or show of authority . .
. in some way restrained the liberty of a citizen.”
Terry v. Ohio, 392 U.S. 1, 19 n.16(1968)
Officer terminates freedom of movement through
means intentionally applied. Brower v. Inyo, 109
S.Ct. 1378 (1989); or
Person submits to a show of authority.
Fourth Amendment Analysis
 If seized, then may force be used?

“The right to make an arrest or
investigatory stop necessarily carries with
it the right to use some degree of physical
coercion or threat thereof to effect it.” Terry
v. Ohio, 88 S.Ct. 1868, (1968).
Fourth Amendment Analysis
 What is the degree (level or amount)
of force that may be used?

Force must be objectively reasonable. Its
use is not capable of precise definition or
mechanical application.
 What
is the severity of the crime?
 Does the suspect pose an immediate threat
to the safety of the officers or others?
the suspect actively resisting arrest or
attempting to evade arrest by flight?
 Is
Use of Force/Analysis/4th


“Reasonableness of a particular use of
force must be judged from the perspective
of a reasonable officer on the scene rather
than with the 20-20 vision of hindsight.”
“The calculus of reasonableness must
embody allowance for the fact that police
officers are often forced to make splitsecond judgments - in circumstances that
are tense, uncertain, and rapidly evolving about the amount of force that is
necessary in a particular situation.”
Federal Case Law - 4TH
Amendment
 Tennessee v. Garner, 105 S. Ct. 1694
(1985)

Fleeing felon/deadly force rule
 “Thus,
if the suspect threatens the officer with
a weapon or there is probable cause to
believe that he has committed a crime
involving the infliction or threatened infliction
of serious physical harm, deadly force
may be used if necessary to prevent escape,
and if, where feasible, some warning has
been given.”
14th Amendment-Due Process
. “nor shall any state deprive any person of life, liberty, or property . . .”
without due process of law.
Use of Force 14th Amendment
 Due Process Clause


Prohibits arbitrary governmental
deprivations of life liberty and property
without due process.
Prevents governmental officials from
abusing their power, or employing it as an
instrument of oppression.
14th Amendment Use of Force
 When does it attach?
Search and Seizure
14th Amendment
Non-Seizure
Disperse
Attempt to seize
Pursuit
4th
No cruel and
unusual punishment
14th Amendment
Post-Seizure
Special Relationship
In Custody
Created Danger
8th
Use of Force 14th Amendment
 Shocks the Conscience
 Special relationship established by State
 Danger Created by State
Substantive Due Process
“Shocks the Conscience”

“Thus in a due process challenge to
executive action, the threshold question is
whether the behavior of the governmental
officer is so egregious, so outrageous, that
it may be so fairly said to shock the
contemporary conscience” Lewis at 1716
at n.8
14th Amendment
 Special

Restraint on person’s liberty
 Assuming control over the person

A State's failure to protect an individual
against private violence simply does not
constitute a violation of the Due Process
Clause. DeShaney v. Winnebago,109
S.Ct. 998(1989).
 Danger

Relationship.
Creation.
State creates the danger that harmed
the individual.
14th Amendment – Danger
Creation
 State created the danger
 Plaintiff was a member of a limited group
 States conduct put Plaintiff at a
substantial risk of serious, immediate
and proximate harm
 State acted recklessly in conscious
disregard of that risk
 State’s conduct when viewed in total was
conscience shocking
1st Amendment
Threat level
 Is the Speech
protected?


Not all expressive
symbolic speech is
protected
True Threat (Virginia
v. Black)
Intimidation
True Threat
Political Speech
Plus a little spice
Bradenburg
Political Speech
1st Amendment Analysis

True threat (Order to Disperse)
 Those
forms of intimidation designed to
inspire fear of bodily harm.

Thus just as a State may regulate only that
obscenity which is the most obscene due to its
prurient content, so too may a State choose to
prohibit only those forms of intimidation that
are most likely to inspire fear of bodily harm.”
Virginia at 123 S.Ct. 1536 (2003)
First Amendment - Analysis
 Analysis

Does the person have a right to be at that
location
 Public

forum?
Public property which has by law or tradition
been given the status of a public forum. A
place where people have traditionally be
allowed to associate and speak for or against
certain subjects.
First Amendment - Analysis



If public forum, then is the restriction content based?
(Is the restriction triggered by the Speaker’s message
or has a crime occurred?)
If the restriction is content based, then the restriction
is subject to the highest degree of constitutional
scrutiny. (strict scrutiny request)
Restriction will withstand constitutional review only if it
was necessary and narrowly tailored to achieve a
compelling public interest.
First Amendment - Analysis
 Analysis

Is restriction content neutral
a
content neutral restriction is one that
regulates time, place or manner.
 The restriction will withstand constitutional
review if the implicated measure was
narrowly fashioned to further a significant
governmental interest, and it leaves open
ample alternate channels of communication.
(intermediate scrutiny test)
First Amendment - Analysis

Rationally related test
 If
action does not invade any fundamental
right, then governmental restriction survives
so long as it is rationally related to the
advancement of a legitimate state interest..
Defendants
What steps would you take to prepare for
potential litigation
Identify Core Constitutional Issues
Less Lethal/Relationship to
Core Constitutional Principles
 Use of “less lethal” to Reasonable
Seizure




Physical force
Chemical agents to seize
Taser to seize
Horses to contain
Use of less lethal to Disperse
 Use of Less Lethal / Due Process/First
Amendment





Verbal Commands
Physical Coercion to disperse
Chemical Agents to disperse
Taser to disperse
Physical force to disperse
Conclusion
Core Principles
 1st

Promotes free trade of ideas
 Level
of protection depends on the content
and location
 4th

Protects security interest in person homes
places and effects
 14th Due Process Clause

Prohibits arbitrary governmental action