Guide to Understanding Use of Force Lawsuits...Use of Force Lawsuits Page 2 B. Personal Service This...

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track

San Diego Convention Center, San Diego

Guide to Understanding Use of Force Lawsuits

Thursday, September 6, 2012 Annual Conference Breakout Session; 8:00 – 9:30 a.m.

Susan E. Coleman, Burke, Williams & Sorensen

Robert Fonzi, Undersheriff, San Bernardino County Gary Geuss, Chief Assistant City Attorney, Los Angeles

GUIDE TO UNDERSTANDING USE OF FORCE LAWSUITS

League of California Cities Fall Conference San Diego, CA

September 5, 2012 Delivered by: Susan E. Coleman Partner Burke, Williams & Sorensen, LLP Gary Geuss Chief Assistant City Attorney City of Los Angeles Robert Fonzi Undersheriff County of San Bernardino

I. WHY DO PEOPLE FILE USE OF FORCE LAWSUITS?

A. The Best Defense is a Good Offense

Sometimes the best defense against a criminal accusation is a claim that use of force was not warranted, unnecessary, unreasonable, or excessive. Many excessive force claims arise from incidents where the plaintiff is actually at fault, due to poor choices such as answering the door with a gun, fleeing from the police, or ignoring commands, and then tries to shift the blame to authorities.

B. To Obtain a Money Judgment

Many types of damages are available to a prevailing party – compensatory damages (for medical bills, wage losses, pain & suffering, etc.) and punitive damages (to punish a party for reprehensible conduct and discourage future similar conduct).

C. Sometimes Merit

Large state and local law enforcement agencies with 59 percent of the nation's sworn officers received 26,556 citizen complaints about police use of force during 2002. The rate was 6.6 complaints per 100 full-time sworn officers. About eight percent of the complaints were officially sustained, that is, there was sufficient evidence to justify disciplinary action against the officer or officers.1 Conversely, many claims against law enforcement lack merit entirely or are exaggerated. The key is knowing how to tell the difference. II. SERVICE ISSUES WITH USE OF FORCE LAWSUITS

A. Generally

If an action against the State of California, service must be made on the Attorney General.2 In suits against any other public agency, service is made by delivering copies of the summons and complaint to the “clerk, secretary, president, presiding officer, or other head of the governing body.”3 Typically lawsuits against a City or County are delivered to the clerk, where they are stamped received and then routed to risk management.

1 Bureau of Justice Statistics - Citizens Complaints About Police Use of Force: Matthew Hickman, June 25, 2006. 2 Cal. Govt. Code § 955.4. 3 Cal. Code Civ. Proc. § 416.50(a).

Use of Force Lawsuits Page 2

B. Personal Service

This is the simplest method of service. It puts more pressure on the Defendant to timely respond, as well as allowing for a plaintiff to begin discovery sooner, as the time period to file a responsive pleading is shorter than by mail service. With peace officer defendants, however, it is best to take measures to avoid this method of service if possible (such as agreeing to accept service on their behalf) in order to avoid disclosure of the defendant’s confidential home address.

C. Service by Mail and Acknowledgement of Receipt

Service by mail is allowable if a copy of the summons and complaint is sent to the defendant, with a request to acknowledge receipt. If the defendant signs the acknowledgment, it waives further service of process (and begins the clock on response times (see below), as well as commencement of discovery). If the defendant refuses to sign acknowledgment of receipt, service has not yet been accomplished, and it will have to be done in another manner. In addition, if the defendant authorizes its attorney as agent to accept service on its behalf, service and acknowledgment of receipt signed by that attorney commences the response time and discovery clock.

D. Service-Related Issues

Issues for law enforcement agencies and defendants being served include:

Individuals or defendants inadvertently signing and returning the acknowledgment of receipt of service, and failing to advise risk management or counsel of the returned acknowledgment;

Individual defendant being personally served, assuming that the agency is

concurrently served and already aware of the lawsuit, without advising risk management or counsel of the service; and

Confidentiality of home address and personal information.

E. Timing of Response

Unless extended by stipulation, court order, or by other means, an answer or other responsive pleading must be filed within 30 days after service of the complaint.4 If served by the U.S. Marshal’s office by mail with acknowledgment of receipt, the

4 Cal. Code Civ. Proc. § 412.20(a)(3).


responsive pleading deadline is typically 60 days from the date of service, as noted on the form. See section V-A for additional information regarding the timing of response. III. PROCEDURAL REQUIREMENTS

A. Tort Claim

A plaintiff seeking recovery against the State of California, or any “local public agency” (including a county, city, district, public authority or other public agency) must first submit a timely claim in compliance with the California Government Claims Act.5 According to the Government Claims Act, a plaintiff must present a claim for relief within six (6) months of accrual of the cause of action, in order to be timely.6 After the claim is filed, the government has 45 days to respond. If the government agency denies the claim during the 45 day time period, the plaintiff has six (6) additional months to file a lawsuit in court from the date the denial was mailed or personally delivered.

Absent a court order granting relief upon a showing of good cause, any plaintiff who fails to timely file a claim in compliance with the Government Claims Act is barred from pursuing a tort against the governmental entity.

B. Statute of Limitations

Generally speaking, an action for a personal injury claim (including claims for assault and battery) must be filed within two (2) years from the date of the wrongful act.7 A “section 1983” claim does not have its own statute of limitations, and is therefore obligated to follow the personal injury statute of limitations of the forum state.8 Under Civil Code section 52.1 (Bane Act), which prohibits persons acting under color of authority in California from interfering with the rights of another, the statute of limitations is three (3) years from the date of the occurrence of the injury or interference.9 Notwithstanding the limitations above, however, the statute of limitations will be tolled for up to two years if the plaintiff is in prison or jail, a minor, legally insane, or if there has been a stay of proceedings.10 5 Cal. Govt. Code §§ 900 et. seq. 6 Cal. Govt. Code § 911.2. 7 Cal. Code Civ. Proc. § 335.1. 8 Wilson v. Garcia (1985) 471 U.S. 261. 9 Cal. Code Civ. Proc. § 338. 10 Cal. Code Civ. Proc. §§ 352(a), 352.1(a).


C. Other Procedural Requirements- Exhaustion of Administrative Remedies

Generally speaking, there are no requirements for exhaustion of administrative remedies when filing a lawsuit alleging unlawful use of force. There are exceptions, however, as outlined below.

1. Tort Claim

If a plaintiff files a lawsuit alleging unlawful use of force under state law (i.e., assault, battery, or the Bane Act)11, he must first file a tort claim against the public entity, receive a denial letter, and then file suit within 6 months of the denial of the claim. No such requirements apply to federal causes of action.

2. Prisoner Exhaustion Issues

If the plaintiff who has filed a complaint for use of force is a prisoner both at the time the incident occurred and when the lawsuit is filed, he or she must first exhaust the formal administrative complaint process available at the prison or jail, before he or she may file a tort complaint.12 IV. INVESTIGATION OF ALLEGATIONS

A. Public Safety Officers Procedural Bill of Rights Act Issues

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) is an act that specifies the procedural rights of public safety officers who are subject to investigation or discipline.13 There are several important POBRA issues to consider in the context of use of force lawsuits.

1. The Lybarger Admonition

An officer interrogated in an administrative investigation shall be informed of his or her rights if the potential for criminal charges appears likely. “If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional right.”14 The peace officer must be told that although he has the right to remain silent

11 Cal. Civ. Code § 52.1. 12 See Cal. Code of Regs, tit. 15, §§ 3084.1 et seq. 13 Cal. Govt. Code §§ 3300 et. seq. 14 Cal. Govt. Code § 3303(h).


and not incriminate himself, his silence can be deemed insubordination, leading to administrative discipline, and that any statements made under the compulsion of threat of discipline can not be used against the officer in a subsequent criminal proceeding.15 This admonition is typically given to police officers suspected of misconduct before internal affairs interviews. Note a compelled statement may also be in writing and is not necessarily verbal. This protection notwithstanding, however, a district attorney does have a statutory right to receive a copy of the police officer’s statement from the administrative investigation.16 In addition, a federal subpoenaing authority such as a grand jury also has the right to obtain the statement.17 Furthermore, while POBRA prohibits the use of coerced statements in “any subsequent civil proceeding”18 , this prohibition does not apply to federal court civil proceedings.19 Thus, in the context of a use of force lawsuit filed in federal court, the statements of the officer obtained during his or her administrative interview can be obtained (through the discovery and motion to compel process) and subsequently used by the plaintiff to prove his or her case. While the officer is not under oath during an internal affairs interview, the statements are admissible as admissions of a party.20 Therefore, employees should be cautious regarding their answers in use of force investigations, as their answers can have a detrimental impact on both the employer and its employee during a subsequent civil lawsuit.

2. Audio Recording

POBRA provides “The complete interrogation of a public safety officer may be tape recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.”21 Thus, in a federal court lawsuit alleging use of force, a plaintiff may also potentially obtain these recordings for proof in his or her suit.

15 Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822. 16 People v. Gwillim (1990) 223 Cal.App.3d 1254. 17 In re Grand Jury Subpoena (9th Cir. 1996) 75 F.3d 446. 18 See Cal. Govt. Code § 3303(f). 19 Welsh v. City and County of San Francisco (N.D. Cal. 1995) 887 F.Supp. 1293. 20 Cal. Evid. Code § 1220. 21 Cal. Govt. Code § 3303(g).


3. Union Representation

An employee subject to an administrative investigation has the right under POBRA to representation. “Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation…The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for noncriminal matters.”22 However, this non-attorney representative is not entitled to assert the attorney-client confidentiality protections of the Evidence Code.23 As such, communications between the employee and non-attorney representative may be discoverable, depending on the circumstances of when they occurred (i.e., discussions after the administrative investigation had concluded). Typically union representatives only ensure that POBRA and due process rights of the employee are protected, such as being noticed of the interview sufficiently in advance, limiting the interview to the noticed scope of the subject of the interview, and allowing no more than 2 persons to question the witness. Due to the lack of attorney- client privilege, and general limitations in having a union representative present, however, it is often prudent for the officer to obtain an attorney representative.

4. Witness Interviews

POBRA rights generally apply to employees subject to administrative interviews by their employer as a potential suspect of misconduct. “When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.)24 On the contrary, witnesses interviewed by the Department who are not under investigation are not subject to the protections of POBRA. As such, no protection appears to exist for limiting production of these statements, in the context of a use of force lawsuit. While the POBRA rights do not apply to a witness who is interviewed, the witness may still be able to assert a right to privacy of their statements under the California or U.S. Constitution, or under appropriate circumstances be able to assert the official 22 Cal. Govt. Code § 3303(i); Alhambra Police Officers Association v. City of Alhambra Police Department (2003) 113 Cal.App.4th 1413, 1422. 23 Cal. Evid. Code §§ 950 – 955. 24 Cal. Govt. Code § 3303, emphasis added.


information privilege. Official information is generally defined as: “…information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”25 A public entity may refuse to disclose official information when “disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice…”26

B. Pitchess Motions

The so-called “Pitchess motion” works to prevent disclosure of confidential peace officer records, absent a showing of good cause by a moving party.27 Generally speaking, peace officer personnel records are confidential and shall not be disclosed unless a moving party has established a specific factual scenario of officer misconduct that has a plausible factual foundation.28 These protections also apply to civil actions.29 Upon a showing of a specific factual scenario of officer misconduct that has a plausible factual foundation, a confidential, in camera review is then conducted to determine if any records in the peace officer file are responsive to the information sought.30 These records will only be released pursuant to a protective order, in order to maintain their confidential status. However, a judge will generally preclude from disclosure information that is more than 5 years old, or which is “so remote as to make disclosure of little or no practical benefit.”31 Further, initial production of information is limited to the names and addresses of complaining parties in prior investigations.32 However, in lawsuits venued in federal court, where the court is adjudicating federal rights, the state law Pitchess privileges that apply to peace officer personnel records are not recognized. “State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts.”33 Questions of evidentiary privilege that arise in the course of adjudicating federal rights are governed by principles of

25 Cal. Evid. Code § 1040(a). 26 Cal. Evid. Code § 1040(b)(2). 27 Pitchess v. Superior Court (1974) 11 Cal.3d 531; Cal. Evid. Code §§ 1043, 1045; and Cal. Pen. Code §§ 832.7, 832.8. 28 City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74. 29 Cal. Pen. Code § 832.7. 30 Cal. Evid. Code § 1045; People v. Mooc (2001) 26 Cal.4th 1216. 31 Id. 32 Mooc, supra, 26 Cal.4th 1216; Warrick v. Superior Court (2005) 35 Cal.4th 1011. 33 Kelly v. City of San Jose (N.D. Cal. 1987) 114 F.R.D. 653, 655-56; Howard v. County of San Diego (S.D. Cal., 2011) 2011 WL 2182441, *1.


federal common law.34 The agency holding the personnel records may assert privileges to protect the records such as the law enforcement privilege (during a pending investigation),35 official information privilege (protecting investigations and other internal inquiries),36 or the deliberative process privilege (revealing internal decision-making process).37 If an agency invokes the official information privilege, it must be supported with a declaration or affidavit with specific threshold information, including the reasons for confidentiality.38 If the threshold showing is made, the court weighs the benefits of disclosure against the potential disadvantages, usually by reviewing the documents at issue in camera.39 Therefore, confidential peace officer records maintained by a government agency may be subject to production and/or examination in camera, absent a federal common law restriction limiting such production.

C. File Contents

With the obvious limitations provided in asserting a Pitchess protection or other privileges against disclosure of private records, public entities are advised to ensure the contents of their peace officer’s personnel files are routinely examined and purged in accordance with legal and administrative guidelines. This includes removal of administrative investigation materials after 5 years from the date of the incident, and removal of written reprimands within one year.40

D. Confidentiality of Home Address

While subject to the limitations of the court order protecting confidentiality, an employing agency should always exercise significant caution prior to releasing the home address of any of its employees. Typically measures can be taken by counsel to avoid this, such as agreeing to accept service on the officer’s behalf, and agreeing to produce the officer at trial.

34 United States v. Zolin (1989) 491 U.S. 554; Fed. R. Evid., Rule 501. 35 See United States v. Winner (10th Cir. 1981) 641 F.2d 825, 831. 36 See generally, 4 J. Moore, FEDERAL PRACTICE ¶ 26.61[1]-[6.1], [7] (2d ed. 1975); see also, Kelly v. City of San Jose (N.D. Cal. 1987) 114 F.R.D. 653. 37 See, e.g., NLRB v. Sears, Roebuck & Co. (1971) 421 U.S. 132; Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena (D.D.C. 1966) 40 F.R.D. 318. 38 Kelly, supra, 114 F.R.D. at 670. 39 See id.; Bryant v. Armstrong (S.D. Cal. 2012) 2012 WL 2190774, *6-7, citing Soto v. City of Concord (N.D. Cal. 1995) 162 F.R.D. 603, 613. 40 Cal. Evid. Code § 1045.


E. Warning Systems

1. Spotting a Problem

An officer with a significant number of similar allegations of misconduct should be subject to greater scrutiny to determine if the pattern indicates a problem. The employing agency should consider implementing internal processes to monitor the repetitive filing of complaints against an officer, and address the allegations accordingly. This type of system will help to address employee issues with further training, or disciplinary action if needed, and thereby avoid or minimize exposure to lawsuits alleging failure to train, supervise, and discipline employees. For example, some agencies may set a numeric amount, triggering additional review after an officer receives a certain number of complaints of misconduct. In some cases, such as a patrol officer who has significant interaction with the public in a rough area, there may be numerous complaints against an officer without any indicia of actual misconduct. That officer may be doing everything right, but need additional training on interaction with the public; or perhaps no action is needed. On the other hand, the complaints may signal a more serious problem that needs to be addressed. In either case, agencies need to examine officers with numerous complaints to evaluate the situation and whether any measures are needed.

2. Bandwagon Effect v. Rogue Officer

The employing agency should evaluate whether citizens are filing complaints against an officer due to word of mouth, or whether the complaints are occurring because the officer is behaving inappropriately.

F. Collecting documents

The public employer should have a policy in place to assemble and collect documents related to the incident underlying the lawsuit. Criminal evidence collection protocols vary, both in the items collected and the time for retention, from evidentiary procedures for civil lawsuits. Particularly for cases in which the underlying incident did not involve a crime and therefore did not trigger evidence collection protocols, gathering evidence for a civil lawsuit is critical.


V. LIFE OF A CIVIL LAWSUIT

A. Service/Initial Response

Service of the summons and complaint starts the clock in a civil lawsuit. In state court, a defendant must generally respond to a complaint within 30 days after being served.41 In federal court, a defendant must generally respond to a complaint within 21 days after being served (if service is not waived) or 60 days after the request for waiver of service was sent (if service is waived).42

A defendant can respond to the complaint by filing either an answer or a motion. An answer will usually include a denial of the material allegations in the complaint and affirmative defenses.43 On the other hand, a motion can be filed in lieu of an answer. In most instances, a demurrer (state court) or Rule 12(b)(6) motion to dismiss (federal court), can be filed on the grounds that the facts as alleged in the complaint fail to state a claim upon which relief can be granted as a matter of law.44 However, even if successful, such motions are often granted with leave to amend the complaint. Leave to amend will not be granted only where the face of the complaint shows that the defect cannot be cured even with an amendment.

B. Discovery

1. General Overview

The period of discovery is the longest portion of a case. This is an important time where all of the parties are given the opportunity to investigate their claims and defenses against each other. The definition of what is discoverable is broad under both state and federal rules: discovery can be sought on any matter, not privileged, which is relevant to the case or “reasonably calculated” to lead to the discovery of admissible evidence.45 Discovery can be sought from anyone, typically parties to the lawsuit, but also including third parties through the use of subpoenas.

Discovery also comes in a variety of forms. There is written discovery, which includes interrogatories, requests for admission, requests for production of documents, and request for itemization of damages. There are also depositions, which may be taken orally or by written questions. Finally, in certain cases, the parties may also retain and utilize experts to provide an opinion on specific issues, such as the reasonableness 41 Cal. Code of Civ. Proc. § 430.40(a). 42 Fed. Rule Civ. Proc., Rules 4(d)(3), 12(a)(1)(A). 43 Cal. Code of Civ. Proc. § 431.30; Fed. R. Civ. Proc., Rule 8(b). 44 Cal. Code of Civ. Proc. § 430.10(e); Fed. R. Civ. Proc., Rule 12(b)(6). 45 Cal. Civ. Proc. § 2017.010; Fed. R. Civ. Proc., Rule 26(b)(1).


of force used, compliance with policies/procedures, or the extent of damages.

2. Assisting in Discovery Responses

The discovery phase of a case necessarily entails a thorough investigation of the underlying facts to each parties’ claims and defenses. Because of this, clients are often called upon to assist their attorneys in responding to another party’s discovery requests.

Individuals with knowledge of some aspect of the case may be interviewed and/or prepared by attorneys before they are deposed, or to assist in the preparation of written discovery requests and responses.

Potential witnesses must be prepared by attorneys before they are presented for deposition, if represented by counsel and/or employees of the agency

Clients and agency employees may be asked to help gather documents to produce to the opposing party.

Clients may be asked to review and verify written discovery responses when required by law.

C. Dispositive Motions

A dispositive motion is one that would dispose of all or part of a case before trial, such as a motion for summary judgment or summary adjudication. The moving party must prove that there is no genuine issue of material fact for trial, and thus, the court may dispose of one or all of the issues as a matter of law.46 From the defendant’s perspective, such a motion can be made on the grounds that the plaintiff’s case cannot be fully proven, or that defendant has an affirmative defense.

A motion for summary judgment is the parties’ last opportunity before trial to dispose of all or part of a case. Such motions are often labor intensive, and the culmination of all of a party’s discovery and research efforts. They can also help facilitate settlements, typically while the summary judgment motion is pending.

46 Fed. R. Civ. Proc., Rule 56; Cal. Code of Civ. Proc. § 437c(c).


D. Settlement?

Settlement can occur at any stage of litigation, but it typically occurs either early in the case or just before trial. Settlements can be accomplished with or without the aid of a third party, such as a private mediator or judicial officer. Some factors to consider in determining whether to settle and for how much include, but are not limited to: (1) the relative strength of plaintiff’s versus defendant’s case, (2) witness credibility, (3) the alleged amount and seriousness of plaintiff’s damages, (4) the likelihood of defense verdict, and (5) the cost of taking the case to trial.

E. Trial

If a case is not completely disposed of by way of a dispositive motion or by settlement, it will proceed to trial. Issues of law are always decided by the judge; however, issues of fact can be decided by the judge or jury. Plaintiffs almost always choose a jury trial in order to attempt to obtain a verdict by inciting jury sympathy. However, if defense witnesses are credible and/or the plaintiff lacks credibility, a jury trial can be favorable. In either case, preparation is key.

Trials in state versus federal court may involve different cost issues. For example, the parties must share the cost of a court reporter and jury fees in state court.

VI. EVALUATING LIABILITY EXPOSURE

A. Use of Force Legal Standards

Different standards are used by the courts to evaluate the appropriateness of the force, depending whether the person is on the street (Fourth Amendment), in custody pending trial (Fourteenth Amendment), or incarcerated after conviction of a crime (Eighth Amendment). The specific standards for each are explained in more detail below.

1. Fourth Amendment’s “Objective Reasonableness” Standard

Under the Fourth Amendment, the standard that is used by courts to evaluate whether the use of force was constitutionally reasonable or unconstitutionally excessive is called the “objective reasonableness” standard. This standard requires courts to engage in 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.”47 Thus, “[n]ot every push or shove, even if it may later seem

47 Graham v. Connor (1989) 490 U.S. 386, 396.


unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.”48

What does all this mean? Given that the objective reasonableness standard is “not capable of precise mechanical definition or mechanical application,”49 the United States Supreme Court has provided several key principles upon which every case must be decided. First, what is “reasonable” is adjudged from the standpoint of “a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”50 Second, because the test is an objective one, the reasonableness of an officer’s actions are assessed “without regard to their underlying intent or motivation.”51 This cuts both ways because an officer’s good intentions will not remedy an unconstitutional use of force; likewise, an officer’s bad intentions will not turn a reasonable use of force into an unlawful one.

Finally, in addition to the above principles, the Supreme Court provided several factors, known as the Graham factors, which should be considered in any given case:

The severity of the crime at issue;

Whether the suspect posed an immediate threat to the safety of the officers or others; and

Whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

Other factors considered by the Ninth Circuit52 include the following:

Whether a warrant was used;

Whether the plaintiff resisted or was armed;

Whether more than one arrestee or officer was involved;

Whether the plaintiff was sober;

48 Graham, supra, 490 U.S. at 396-397. 49 Id. at 396. 50 Id. (emphasis added). 51 Id. at 397 (emphasis added). 52 Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1440 n.5.


Whether other dangerous or exigent circumstances existed at the time of the arrest; and

The nature of the arrest charges.

2. Fourteenth Amendment & Pretrial Detainees

When a person is in custody before trial, and is not yet convicted, he is considered a pretrial detainee and the use of force against him is judged under the due process clause of the Fourteenth Amendment. “[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”53 This is because pretrial detainees have not yet been convicted and are therefore not subject to punishment, or the cruel and unusual punishment clause of the U.S. Constitution.

The Supreme Court, however, has not addressed whether pre- versus post-arraignment detainees have different rights. The Ninth Circuit differentiates between pre- and post-arrangement detainees. In cases involving the use of force against a post-arrest, pre-arraignment detainee, the Ninth Circuit will look to the Fourth Amendment’s “objective reasonableness” standard.54 These protections end, however, at “the time such arrestee is released or found to be legally in custody based upon probable cause for arrest.”55 In the latter situation, the Fourteenth Amendment applies.

Thus, in cases involving the use of force against a post-arraignment, pre-trial detainee, courts will look to the following factors in analyzing the force used: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) the extent of threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of a forceful response.56

3. Eighth Amendment and Convicted Prisoners

For post-convicted incarcerated persons, the Eighth Amendment applies to evaluate whether a use of force is excessive. The Eighth Amendment prevents the use of cruel and unusual punishment against prisoners. To prevail on an Eighth Amendment claim of excessive force, an inmate must prove that prison officials subjected him to “unnecessary and wanton infliction of pain.”57 The issue is “whether

53 Graham v. Connor (1989) 490 U.S. 386, 395 n.10. 54 Pierce v. Multnomah County (9th Cir. 1996) 76 F.3d 1032, 1043. 55 Id. at 1043. 56 White v. Roper (9th Cir. 1990) 901 F.2d 1501, 1507. 57 Whitley v. Albers (1986) 475 U.S. 312, 319.


force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”58

Courts may consider the following factors to evaluate whether the applied force at issue was appropriate: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) the extent of threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of a forceful response.59

In applying this standard, the Supreme Court has also said that prison officials are entitled to deference regarding the execution of policies and practices adopted by the prison to maintain institutional security.60 Additionally, an Eighth Amendment excessive force claim “necessarily involves a more culpable mental state” than required under the Fourth Amendment.61 “For this reason, under the Eighth Amendment, we look for malicious and sadistic force, not merely objectively unreasonable force.”62

4. Related State Law Claims

In addition to the various federal claims that may be alleged based on a law enforcement officer’s use of force, plaintiffs may also supplement their case with various state law tort claims. The most common torts include assault, battery, and false imprisonment. Civil Code section 52.1 (Bane Act) is also used, which prohibits the use of threats, coercion, or force to interfere with a constitutionally protected act (such as demonstrating), and it allows for the collection of attorneys’ fees by the plaintiff if he or she prevails. In contrast, torts such as assault and battery do not have a provision for recovery of attorneys’ fees.

As long as federal claims are asserted, the inclusion of state law claims should not effect either party’s decision to choose a federal venue. A federal court can assert pendent subject matter jurisdiction over such claims. Conversely, federal claims may be asserted in state court so long as there are also state law claims alleged.

B. Extent of Injuries

The extent of a plaintiff’s injuries can greatly affect the evaluation of liability. In that respect, certain types of evidence can be critical: 58 Id. at 320-21. 59 Id. at 321. 60 Id. at 321-22. 61 Clement v. Gomez (9th Cir. 2002) 298 F. 3d 898, 903. 62 Id.


Audio-recorded statements about the incident;

Photos and videos of the incident;

Photos of the injuries (or lack thereof);

Medical records, showing physical and emotional/psychological damage (or lack thereof); and

Expert evidence to support or rebut the extent of damage.

The bottom line, however, is that all of the evidence can impact the compensatory and punitive damages at stake, and the potential trial or settlement value.

C. Jury Sympathy Factor

Often, plaintiffs hope to exploit the jury’s bias against law enforcement to win their case. This may stem from a juror’s background, including incidents with the police experienced by the juror, or negative media publicity such as from incidents spanning from Rodney King to the more recent Kelly Thomas incident in Fullerton.

Plaintiffs also hope to elicit jury sympathy for their situation and/or their damages. If jurors can imagine themselves in the plaintiff’s position, or feel that the plaintiff was treated unfairly, they will have additional sympathy when the plaintiff testifies about his pain, suffering, difficulty in recovering physically or emotional, or similar items.

These biases and sympathies are difficult to counter, although they can be mitigated in a variety of ways. For example, defendants can show that they have enacted reasonable and sound departmental policies. Defendants can offer credible testimony at trial by officers, and objective evidence such as audio, photographic and video evidence. Defense counsel should also gather impeachment evidence against plaintiffs, when available, in order to help the jury to find the plaintiff less credible than the officer.

D. Report Preparation

It is important for peace officers to draft their reports separately, without any appearance of having coordinated details of what occurred before preparing their reports. Individual agencies may have different policies on whether a video of the incident may be reviewed before the report is prepared. If the agency policy permits review of the video, it should be encouraged. Officers may have “tunnel vision” during an incident, have their recall clouded by adrenalin or fatigue, and/or focus on only their


small role in the events which transpired, so watching a video encourages accuracy. It should not, however, be substituted for an officer’s memory of events, but only used to assist in refreshing the officer’s recollection of the entire incident.

Variance in individual accounts (both written and verbal) is normal and to be expected. In fact, having overly similar accounts of the incident may create a greater inference of collusion than disparity in the reports.

E. Compliance with Department Policy

Compliance with policies can also help to show that an officer acted reasonably under the circumstances. To do so, defendants may look to and reference statutory guidelines, case law, and departmental policies and procedures.63 Indeed, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”64

In Saucier v. Katz,65 the Supreme Court set forth a two-pronged test to determine whether qualified immunity exists. First, the court asks: “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”66 If no constitutional right was violated if the facts were as alleged, the inquiry ends and the defendant prevails.67 If, however, “a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established . . . . The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”68 Courts now have the discretion to decide which prong of the analysis to address first, in light of the particular circumstances of each case.69

In contrast, evidence that an officer violated departmental policy or regulations will be used as Exhibit A by a plaintiff’s counsel. While violation of regulations is not

63 See Grossman v. City of Portland (9th Cir. 1994) 33 F.3d 1200, 1209 (“where a police officer has probable cause to arrest someone under a statute that a reasonable officer could believe is constitutional, the officer will be immune from liability even if the statute is later held to be unconstitutional.”). 64 Malley v. Briggs (1986) 475 U.S. 335, 341. 65 Saucier v. Katz (2001) 533 U.S. 194. 66 Id. at 201. 67 Id. 68 Id. at 201-02 (quoting Anderson v. Creighton (1987) 483 U.S. 635, 640). 69 See Pearson v. Callahan (2009) 553 U.S. 223, 236.


equivalent to a constitutional violation70, it can nevertheless be damaging evidence against an officer and his agency. Violation of a regulation, procedure, policy, or training protocol may also prevent the officer from successfully claiming qualified immunity as a defense to suit.

F. Governmental Liability/Immunity

1. Federal Law Claims – Monell Liability

“A municipality may be held liable under a claim brought under [42 U.S.C. § 1983] only when the municipality inflicts an injury, and it may not be held liable under a respondeat superior theory.”71 Thus, a local governmental entity may be subject to direct liability under federal law for equitable relief and compensatory damages if the alleged violation, such as an unlawful use of force, can be attributed to a municipal custom or policy. This Monell liability applies to municipalities and not to the State.

In a suit for compensatory damages, governmental liability is assessed independently from the officers involved. A local government is not entitled to a qualified immunity based upon the good faith of their officials.72 A local government can be liable for a constitutional violation caused by an official policy or custom even where the officials responsible for that policy or custom are entitled to qualified immunity.

Local governments are, however, absolutely immune from punitive damages in section 1983 actions.73 A local government may nonetheless choose to pay the punitive damages awarded against one of its officials.74 However, if a City pays punitive damages associated with a finding of misconduct or unconstitutional conduct of its officers or officials, this may be used as evidence against the City in a Monell liability claim, on grounds that the City ratified or otherwise sanctioned the misconduct.

2. State Law Claims

Generally, a local governmental entity is only liable as “provided by statute.”75 Government Code section 815.2 permits local governmental entities to be sued “for injury proximately caused by an act or omission of an employee of the public entity

70 See Cousins v. Lockyer (9th Cir. 2009) 568 F.3d 1063, 1070 (violation of Cal. Code of Regs., title 15 fails to show liability under 42 U.S.C. § 1983). 71 Gibson v. County of Washoe (9th Cir. 2002) 290 F.3d 1175, 1185 (citing Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 694). 72 Owen v. City of Independence (1980) 445 U.S. 622, 650. 73 City of Newport v. Fact Concerts (1981) 453 U.S. 247, 271-72. 74 Cornwell v. City of Riverside (9th Cir. 1990) 896 F.2d 398, 399; see Cal. Govt. Code § 825(b). 75 Cal. Govt. Code § 815.


within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”76 However, the entity would also be entitled to the same immunities as its employees in such a case.77 The net result is that a City is liable for assault and battery if the officer is found liable, and if the officer is exonerated, the City is too.

G. When Not to Provide a Defense or Indemnity to an Officer

There may be certain instances where a public entity chooses not to provide a legal defense or indemnity to one of its employees being sued, such as the following circumstances:

Officer acted in bad faith

Officer acted outside the scope of his or her employment78

o Note, however, that if an officer uses his authority as law enforcement to carry out a tortious act upon another, the employer may be found vicariously liable under the factual circumstances.79

Officer has a history of acting in bad faith or outside the scope of his or her employment (i.e., Pitchess issues)

Officer is not cooperating in his defense

Officer violated a statute

Typically a legal defense will be provided even when indemnification may be denied. This may occur in situations when the officer was terminated for his conduct, which was on duty and in-uniform. When an officer is also prosecuted, the agency often declines to provide either a legal defense or indemnification.

76 Id., § 815.2(a). 77 Id., § 815.2(b). 78 See Cal. Govt. Code § 825(a). 79 Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202 (holding that a city may be held liable on theory of respondeat superior when an on-duty police officer misused his authority by raping a woman whom he had detained while on duty).


VII. WAYS TO SAVE COSTS IN LITIGATION

Defending lawsuits can be expensive. There are some way to save costs of litigation before lawsuits arise. For example, public entities can invest in additional employee training to avoid mishaps, and community outreach programs to help shape public perception about the goals and challenges of law enforcement. However, these measures won’t prevent accidents from occurring or frivolous lawsuits from being filed.

Of course, using a reliable law firm that is efficient and specialized in the area of defense will also help to keep attorneys’ fees and costs in check. Some agencies also use a third party administrator to review billing entries and trim any duplicate or excess charges.

Entities can and should formulate plans and strategies for dealing with vexatious litigants who file multiple suits. For example, having a policy against nuisance settlement may discourage people who have to actually litigate the entire case in order to obtain a judgment, if any. Public entities can also pursue costs against plaintiffs after prevailing on a dispositive motion or at trial, in both state and federal lawsuits, which may help to discourage repeat customers.



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