On July 17, 2014, Eric Garner died after New York City Police Officer Daniel Pantaleo placed him in an alleged “chokehold,” a tactic that is reportedly banned by New York City Police Policy and Procedure. Several weeks later, on August 9, Michael Brown died in Ferguson, Mo. following a fatal shooting involving Officer Darren Wilson. On November 24, a grand jury reached a decision not to indict Officer Wilson. Similarly, on December 3, a grand jury elected not to indict Officer Pantaleo. Public protests followed both decisions.
While the mainstream media has placed considerable attention on whether the involved officers in Ferguson and New York would face criminal charges for their actions, little attention has been brought to the civil claims for monetary damages which will surely follow.
This article is not intended to serve as a recitation of the events that unfolded, butrather, to provide some insight into what both sides might argue in the context of a civil litigation alleging violations of Garner and Brown’s constitutional rights.
Examining Section 1983 Actions
In regard to civil litigation, it is anticipated that both Officer Wilson and Officer Pantaleo will face what is commonly referred to as a 1983 action. Separate claims may also be brought against the respective cities. Specifically, 42 U.S.C. 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...”
Section 1983 does not itself provide a source of substantive rights. Rather, it provides the means by which rights conferred elsewhere (Garner and Brown’s Fourth Amendment rights, for example) may be enforced.
Indeed, the families of Brown and Garner will likely argue that Officer Wilson and Officer Pantaleo used excessive force against Brown and Garner in violation of the Fourth Amendment. In response to these claims, Officers Wilson and Pantaleo will likely argue that they are entitled to Qualified Immunity. Qualified Immunity is a defense available to governmental officials when sued in their individual capacity.
This defense shields government officials from personal liability for civil damages insofar as their conduct does not violate clearly established constitutional rights which a reasonable person would have known (Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A two-part test is used to determine whether an individual is entitled to qualified immunity. The test consists of first making the inquiry as to whether a constitutional right has been violated and, second, whether that right was clearly established at the time (Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008)). It has been held that the doctrine of Qualified Immunity protects all but the plainly incompetent or those who knowingly violate the law (Malley v. Briggs, 475 U.S. 335, 341 (1986)).
For example, in the Garner claim, the Court will need to determine whether Officer Pantaleo violated Garner’s clearly established Fourth Amendment rights when Pantaleo used a take-down maneuver to effectuate an arrest. For Brown, the Court will need to determine whether Officer Wilson violated Brown’s clearly established Fourth Amendment rights when Wilson used deadly force by fatally shooting Brown.
The Calculus of Reasonableness
The Fourth Amendment provides “[T]he 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 relevant inquiry is whether the force was “objectively reasonable” under the circumstances (Scott v. Harris, 550 U.S. 372, 381 (2007)).
In Graham v. Connor, 490 U.S. 386, 388 (1989), the Supreme Court identified several factors to assist the trier of fact in determining whether the force used was reasonable. First, the severity of the crime at issue. Second, whether the suspect poses an immediate threat to the safety of the officers and others. Third, whether he is actively resisting or attempting to evade arrest by flight.
The calculus of reasonableness must embody allowance for the fact that police officials 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.
In Garner, the court will have the advantage of video evidence, whichwill provide the court with an undisputed account of what occurred during the incident, including whether the officer performed an actual chokehold, or in the alternative, a less dangerous take-down method. It is important to remember, however, that while the court can view the footage on repeat and in slow motion, the reasonableness of a particular action is to be judged from the perspective of a reasonable officer on the scene, and not with the benefit of 20/20 hindsight (Dorsey v. Barber, 517 F.3d 389, 399 (6th Cir. 2008)).
In light of the video, the defense may argue that the undisputed evidence establishes that Officer Pantaleo was faced with a large male (six foot three, 350 pounds) who was agitated (speaking to officers with a raised voice) and resisting the officer’s attempt to place him in handcuffs. As such, Pantaleo will likely argue that he could not have reasonably known that his use of a take-down method, which was intended to control -- not injure -- a resisting suspect, violated Garner’s clearly established constitutional rights. Conversely, the Garner family may argue that he was being stopped for selling tax-free cigarettes (a non-violent crime), and even if the use of some force by Pantaleo was justified in light of Garner’s alleged resistance to being handcuffed, the use of a chokehold was excessive as Garner was not posing an immediate threat to the safety of the officers or others.
In the Brown case, the court will have no video evidence. In addition, there are conflicting witness statements. As such, Officer Wilson will likely rely on the physical evidence. Wilson may argue that the undisputed physical evidence, including the autopsy report, establish that Brown was struggling for control of Wilson’s firearm when Wilson fired the first shots inside his cruiser.
Further, Wilson may argue that the undisputed physical evidence establishes that Brown was walking towards Wilson, and that his hands were not over his head, when Wilson continued to discharge his firearm outside of his cruiser and after Brown fled from the officer.
Conversely, the family for Brown will presumably rely on the conflicting eye witness accounts to contend that Brown’s hands were over his head when Wilson fatally shot him. Because an officer may not use deadly force in the absence of any reasonably perceived threat of death or serious physical injury to the acting officer or others, the Brown family will likely argue that the deadly force used against Brown by Officer Wilson was excessive and in violation of Brown’s Fourth Amendment Rights.
In light of the high profile nature of these two incidents — and their potential to generate significant settlements or verdicts — it is anticipated that the publicity surrounding both cases will increase the likelihood that 1983 actions against other police officers and public entities will increase. As such, police training and proper documentation is more important than ever in order to prevent or defend these actions.
