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December 2019


Practice Pointer: The Use of Special Interrogatories to Assist In Qualified Immunity Determination


Thomas P. Miller

Christie Law Group, PLLC

Seattle, WA


            Those of us who represent government officials in federal civil rights lawsuits will almost always bring a motion for summary judgment, arguing that our individual clients are entitled to qualified immunity.  Qualified immunity is not just an affirmative defense, it is a shield from suit.  Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).  The qualified immunity inquiry asks two questions: (1) was there a violation of a constitutional right, and, if so, (2) was the right at issue “clearly established” such that it would have been clear to every reasonable officer that his or her conduct was unlawful in that situation.  Saucier v. Katz, 533 U.S. 194, 201-02 (2001). 


            At summary judgment, the court will assume plaintiff’s version of facts to be true and rule on whether those facts state a claim for a constitutional violation and, if so, whether every reasonable officer would have known the alleged conduct violated a right.  If a claim survives summary judgment, qualified immunity may still be available to the defendant.  Indeed, the trial court can and sometimes does grant qualified immunity in a post-trial motion.  One issue we trial attorneys face is that the qualified immunity inquiry after trial will depend upon the evidence presented there.  Typically, if the jury accepts the plaintiff’s version of events and renders a verdict for the plaintiff, they have determined that the officer violated a constitutional right and the qualified immunity inquiry ends.  However, there can often be situations where a jury accepts an officer’s version of events as true, but still finds the officer violated a constitutional right and finds in favor of the plaintiff.  Police excessive force cases are particularly susceptible to this type of verdict, because a jury may very well believe that the plaintiff was physically resisting arrest, but the jury does not like the fact that the officer defendant used a particular type or quantum of force.  In other words, while that individual jury determined there was a constitutional violation, that it was a constitutional violation may not have been clearly established under the case law at the time.    


Take for example a case where a police officer uses a Taser to subdue a felony suspect who fights off arrest with physical force and then runs.  When the Taser makes contact, the suspect falls face-first to the ground, sustaining broken teeth and broken bones in his face.  Case law is fairly well settled that such use of the Taser would be reasonable to apprehend a physically resistive fleeing felony suspect (say that one fast five times).  At summary judgment, the plaintiff gives a self-serving declaration in which he states that he complied with all commands and the officer tased him anyway, just for sport.  That creates an issue of fact to preclude summary judgment and off to trial we go.  Now, at trial, it is extremely possible that a jury could find the plaintiff is not at all credible, but they recoil at the severity of the injuries he sustained from being tased.  In their minds, and in their deliberations during which they completely disregard the court’s instructions and the law, they feel that the use of the Taser was just too harsh.  So, they return a plaintiff’s verdict for $5,000 so the plaintiff can get his teeth fixed.  If the trial judge knew that the jury found the officer’s version of events to be the credible version, he or she would grant qualified immunity.  However, absent the jury communicating its factual findings to the judge, the judge will never know the jury’s resolution of those contested facts.


This is where the use of special interrogatories enters the picture.  By submitting special interrogatories that ask the jury to answer specific factual questions about what transpired during the arrest (“did the officer identify himself as police?” “did the plaintiff resist arrest?” “did the plaintiff punch the officer?” “did the plaintiff run away from the officer?”), the court can make a qualified immunity determination, which examines “clearly established” law as applied to the jury’s factual findings.  The problem is that the Supreme Court has not yet waded into this territory to mandate that district courts resolve qualified immunity issues at trial in this manner.  Ringuette v. City of Fall River, 146 F.3d 1, 6 (1st Cir. 1998) (“a ‘black hole’ exists in the law as to how to resolve factual disputes pertaining to qualified immunity when they cannot be resolved on summary judgment prior to trial.”); Hung Lam v. City of San Jose, 869 F.3d 1077, 1086 (9th Cir. 2017) (a district court’s decision whether to give special interrogatories is reviewed for an abuse of discretion).  However, all circuits except the Fifth Circuit acknowledge that factual disputes that determine qualified immunity should be decided by the jury and the legal question of whether those decided facts violate clearly established law must be decided by the court.  See, Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017) (The First, Second, Third, Fourth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits take the view that whether a right is clearly established is a legal issue for the judge to decide, although special interrogatories to the jury can be used to establish disputed material facts; indeed, special interrogatories may be the better practice);  Gonzales v. Duran, 590 F.3d 855, 861 (10th Cir. 2009) (where qualified immunity may turn on a jury’s resolution of discrete factual questions, the better approach is for court to submit special interrogatories to the jury to establish the facts). 


In Morales, the trial court submitted the issue of qualified immunity in a false arrest and excessive force case to the jury, with an instruction that asked it to decide whether the right at issue was “clearly established.”  Morales, 873 F.3d at 822.  In bringing the Ninth Circuit in line with the majority of circuits, the Morales held that it was error to allow the jury to decide what is undoubtedly a legal question, and the better practice is to submit special interrogatories to the jury to determine factual questions that bear on qualified immunity.  Id.  This leaves the Fifth Circuit as the lone wolf that still holds that a court may submit the entire issue of qualified immunity to the jury, including whether the right in question was clearly established.  Brown v. Sudduth, 675 F.3d 472, 482 (5th Cir. 2012) (“A jury may be given the issue of qualified immunity if that defense was not resolved on summary judgment”); see also, McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000); Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998).


The problem that many of you have likely encountered, as we have out here in the Ninth Circuit, is that the district courts are extremely reluctant to submit factual interrogatories to the jury, even though controlling case law in their circuit allows them to do so.  The reasons seem to vary from judge to judge, but the overriding theme we have seen is that judges prefer to wait and see what the verdict is, believing the qualified immunity issue can be addressed via post-trial motion if necessary.  Those of you in the Fifth Circuit should keep fighting the fight and proposing special interrogatories in those cases where factual disputes prevent a grant of qualified immunity prior to trial in hopes that the court of appeals will see the light on the “better practice” of allowing the jury to decide the facts so the judge can decide the law as applied to those facts.  Those practitioners in all other circuits should keep doing the same.  Perhaps one of our future cases will frame the issue for the Supreme Court and we can get a ruling that the jury must decide the factual issues via special interrogatories in order for the trial court to decide qualified immunity post-trial.  Until that happens, we will likely continue to see mixed results, with district courts more often than not opting not to submit factual interrogatories to the jury to assist with qualified immunity determinations at trial.

September 2019


Click here to read "When Are Police Officers Liable For Actions Leading Up to an Otherwise Constitutional Use of Force" by Ann E. Trivett.


June 2019


Nieves v. Bartlett—U.S. Supreme Court rejects retaliatory arrest claim as a matter of law when there was probable cause for the initial arrest.


By Bob Christie

June 2, 2019


We now have the answer to the question posed in the article I wrote in November 2018 concerning the case of Nieves v. Bartlett, argued to the Supreme Court that month—a retaliatory arrest claim will usually fail as a matter of law in the face of an arrest made pursuant to probable cause.  Justice Roberts issued the majority opinion on May 28, 2019. 


Let’s review the facts.  Alaska winters are cold and the nights are long.  There is no better way to celebrate this than to combine alcohol and high-speed snowmobile racing—an annual event called “Arctic Man.”  Plaintiff Bartlett was an enthusiastic participant in Arctic Man 2014, a particularly popular event that year with a crowd of close to 10,000 participants.  Sgt. Luis Nieves and Trooper Bartlett, the two named individual defendants, arrested Bartlett on the last night of the festivities.  While there are disputed facts surrounding the events leading up to Bartlett’s arrest for disorderly conduct and resisting, there is no dispute that the officers had probable cause to make the arrest.  Bartlett claims that the officers’ motivation for arresting him was based on speech—making his case one of alleged retaliatory arrest in violation of the First Amendment. 


Justice Roberts noted that in Lozman v. Riviera Beach, 518 U.S. ______ (2018), the Court addressed retaliatory arrest claims limited to the context of where the plaintiff was arrested pursuant to an alleged “official municipal policy.”  It reserved for another day whether the existence of probable cause for the arrest categorically bars a retaliatory arrest claim.  That day arrived with the Nieves case.


The decision centers on “but-for” causation, noting that “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motives must cause the injury.  Specifically, it must be a but-for cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.”  (Emphasis original.)  Justice Roberts notes that in the “retaliatory prosecution” line of cases, the Court’s prior decision in Hartman v. Moore, 547 U.S. 250, 259 (2006), made clear that a prevailing plaintiff must establish a causal connection between the government defendant’s “retaliatory animus” and the plaintiff’s “subsequent injury.”  “Thus, even when an officer’s animus is clear, it does not necessarily show that the officer ‘induced the action of a prosecutor who would not have pressed charges otherwise.’  Hartman, 547 U.S., at 263.”  Hartman thus made clear that a plaintiff must plead and prove an absence of probable cause for the underlying crime itself in order to prevail in a retaliatory prosecution claim.  As Judge Roberts characterized it “. . . plaintiff must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.”


That analysis framed the issue here—should the same no-probable-cause requirement apply to First Amendment retaliatory arrest claims such that the existence of probable cause would bar this type of claim as a matter of law?  As I posited in my earlier article:  “Police officers need guidance and rules that can be executed in tense and rapidly developing situations without fear of being sued.  This case provides the Supreme Court with an opportunity to fashion such guidance.  Stay tuned.”


Justice Roberts, recognizing the split-second nature of officer decision making when assessing whether to arrest, made clear that “[t]o ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness . . .  A particular officer’s state of mind is simply ‘irrelevant,’ and it provides ‘no basis for invalidating an arrest.’  Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004).”  He rejected the plaintiff’s argument that the court adopt a “purely subjective approach,” holding that this “would undermine that precedent by allowing even doubtful retaliatory arrest suits to proceed based solely on allegations about an arresting officer’s mental state.”  “Any inartful turn of phrase or perceived slight during a legitimate arrest could land an officer in years of litigation.”  If every word used during an otherwise valid arrest could serve as a basis for a First Amendment claim, “officers would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off.” 


So perhaps officers now have their bright line test.  If there is probable cause for an arrest, a First Amendment retaliatory arrest claim will fail as a matter of law—the Court having adopted Hartman’s no-probable-cause rule developed in retaliatory prosecution cases.  However, if a plaintiff can establish a lack of probable cause, then the test articulated in Mt. Healthy City of Ed. v. Doyle, 429 U.S. 274 (1977), governs: “The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.”  Lozman, 585 U.S., at ______ (slip op., at 8).


But not so fast.  As I noted in my prior article: “In oral argument it seemed clear that the justices were looking for a middle ground rule that would allow certain kinds of retaliatory arrest claims to survive a probable cause determination while at the same time not opening the floodgates on every “you arrested me for what I said, not what I did” claim to survive to trial.  My prediction is that they will articulate such a rule, distinguishing cases involving arrests for serious offenses—where probable cause will bar a 1st Amendment retaliatory arrest claim—from those where the arrest was on minor grounds such as obstruction or harassment—where probable cause will be one factor in the analysis.”


Justice Roberts’ opinion carves out an exception to the no-probable-cause requirement, citing the example of someone arrested for jaywalking: “[i]f an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.  In such a case, because probable cause does little to prove or disprove the causal connection between animus and injury, applying Hartman’s rule would come at the expense of Hartman’s logic.”  Hence, the exception will still focus on objective conduct: “[w]e conclude that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”  A plaintiff that makes such a showing “may proceed in the same manner as claims where the plaintiff has met the threshold showing of the absence of probable cause.” 


But how broad is this exception?  Does the test look at the seriousness of the offense prompting arrest to determine whether the retaliatory arrest claim should be dismissed as a matter of law when probable cause is present?  How broadly will courts permit discovery into the arrest history of every officer to see if there is a pattern of that officer arresting individuals that were making vocal complaints?  Justice Thomas picks up on this theme in his concurrence, which specifically dissents from the majority’s adoption of this exception: “With no guidance from the common law or relevant precedents, the majority crafts its exception as a matter of policy.  But this “narrow” qualification threatens to derail our retaliation jurisprudence in several ways.  For one, although the majority’s stated concern is with “‘warrantless misdemeanors’” for ‘“very minor’” offenses like “jaywalking,” its exception apparently applies to all offenses, including serious felonies.  This overbroad exception thus is likely to encourage protracted litigation about which individuals are “similarly situated,” ibid., while doing little to vindicate First Amendment rights.” 


The separate opinions by Justice Gorsuch, Justice Ginsberg, and Justice Sotomayor are all worth reading.  How district and circuit courts apply the majority’s opinion will be interesting to see.  This simple underlying fact pattern yields complicated analysis, recognizing the significance of the competing interests at stake. 


For police officers, this case is worth serious discussion in future training.  Sgt. Nieves’ statement to Bartlett after the arrest—“bet you wish you would have talked to me now”—is what provided the genesis of the First Amendment retaliatory arrest claim.


The discovery in future cases of this type should be limited to objective areas of inquiry, not officer state of mind.  Records of past arrests will be a fruitful area of examination to see if there is a pattern of conduct on the part of the officer when it comes to making arrests of vocal suspects.  The more serious the underlying crime, the more likely that general rule will apply, resulting in a dismissal of the retaliatory arrest claim on summary judgment if there is probable cause for the arrest.  For those of us working on these cases, there is more decision law needed in order to provide clearer guidance.




March 2019


Interesting Recent Cases from the Eleventh Circuit Court of Appeals

Robert C. Lockwood


District Attorney Receives Qualified Immunity Even Though He Defamed Former Prisoner

Echols v. Lawton, 913 F.3d 1313 (11th Cir. 2019)

Douglas Echols served seven years of imprisonment for kidnapping and rape.  A test revealed that his DNA did not match semen recovered from the victim.  Echols was released from prison, his conviction was vacated and a trial court dismissed the indictment against him.  A Georgia state legislator introduced a bill that would compensate Echols for his wrongful conviction.  In response, the prosecuting district attorney, Spencer Lawton, wrote certain legislators and told them that Echols remained under indictment.  Those legislators blocked the bill to compensate Echols.


Echols sued Lawton for First Amendment retaliation, claiming that Lawton retaliated against him for his speech to the legislature and for petitioning the government.  The trial court found that Lawton was entitled to qualified immunity and the Eleventh Circuit affirmed.

Relying upon the allegations in the complaint, the Eleventh Circuit found that Lawton’s letter to the legislators constituted defamation per se.  In particular, Lawton falsely stated that Echols had a criminal case pending against him and acted with actual malice because he knew that the indictment was dismissed.  The Court further found that Lawton’s actions constituted impermissible retaliation under the First Amendment.


Nevertheless, the Eleventh Circuit found that Lawton did not violate clearly established law.  The Court recognized the growing criticism of qualified immunity and the potential to let an “official duck consequences for bad behavior.”  Echols, 913 F.3d at 1325.  The Court also made sure to “condemn Lawton’s alleged conduct.”  Id.  Nevertheless, because Lawton did not have “fair notice” that his alleged conduct was unlawful, he was entitled to qualified immunity.


Eleventh Circuit Reverses Pro Se Prisoner Case

O’Connor v. Warden, No. 17-14464, 2019 WL 413681 (11th Cir. Feb. 1, 2019)

The Eleventh Circuit recently gave a road map to pro se prisoners attempting to avoid the “three strikes” rule of the Prison Litigation Reform Act (“PLRA”).  It appears that Nyka O’Connor frequently utilizes the federal courts to assert complaints regarding the conditions of his confinement.  Under the PLRA a prisoner may not proceed in forma pauperis if he has, on at least three occasions, brought an action or appeal in federal court “that was dismissed on the grounds that it is frivolous, malicious or fails to state a claim upon which relief may be granted.”  28 U.S.C. § 1915(g). When Mr. O’Connor brought his most-recent action, a District court dismissed the claims under this “three strikes” rule.


Nevertheless, the Eleventh Circuit reversed.  The Court recognized and reiterated previous cases, and the statute itself, holding that a prisoner may proceed if he demonstrates “that he is in imminent danger of serious physical injury in order to proceed IFP.”  O’Connor, 2019 WL 413681 at *1.  The Court found that standard to be met in O’Connor’s case because he “alleged that he had not yet received an approved surgery, the continued delay of which was likely to cause his overall physical condition to deteriorate.  Further, he alleged both current complaints and future concerns about his medical condition and the lack of proper treatment, and alleged specific facts showing that his medical conditions, specifically his gastrointestinal issues, were severe.”  Id. at *2.


Fist Strikes While Subject Is Face-Down on the Ground Are Not Excessive Force

Baker v. Clements, No. 18-12724, 2019 WL 418602 (11th Cir. Feb 4, 2019)

Obviously, every case depends on its unique set of facts.  Nevertheless, the Eleventh Circuit recently issued an opinion which, viewed liberally in favor of law enforcement, holds that fists strikes to a subject who is pinned to the ground do not amount to excessive force under the Fourth Amendment.  Baker v. Clements, No. 18-12724, 2019 WL 418602 (11th Cir. Feb 4, 2019).

Herman Baker attempted to run away from officers after a traffic stop.  He was brought to the ground and tased by one of the officers.  The officers pinned him face down on the ground, but he continued to resist.  One officer handcuffed Baker’s left hand, but his right hand remained free.  While ordering the plaintiff to give his hand, the officers then delivered a series of closed-fist strikes to his right side.


On appeal, Baker challenged only the use of fist strikes while he was face-down on the ground.  The Eleventh Circuit found that the use of force was objectively reasonable under the circumstances:


When Defendant Officers employed the fist strikes, Plaintiff had just attempted to evade arrest by flight and had refused multiple orders to get on the ground, to stop resisting, and to give his hands to the officers. An objective officer could also have believed reasonably that Plaintiff -- who had only a single hand in handcuffs -- presented an immediate threat to Defendant Officers’ safety when the fist strikes were used. Not only had Plaintiff offered continuous physical resistance to Defendant Officers’ efforts to restrain him, but we have said that an arrestee with only one hand handcuffed may pose a danger to officers because “without both hands shackled, the single handcuff could be used as a weapon.” See Hoyt v. Cooks,  672 F.3d 972, 979 (11th Cir. 2012).


Baker, 2019 WL 418602 at *3.


Interesting §1983 Employment Cases from the First, Second and DC Circuits

Kay H. Hodge



First Amendment

Delaney v. Town of Abington, 890 F.3d 1 (1st Cir. May 4, 2018).


Delaney, an Abington police officer, brought suit against the Town and three senior officers in the Town’s police department, under § 1983 alleging that the Defendants had illegally retaliated against him for exercising rights protected by the First Amendment.  More specifically, Delaney alleged that he suffered a series of adverse employment actions as a result of his filing two identical complaints with the Massachusetts Office of the Attorney General in which he claimed that the Town police department’s traffic ticketing policy, in violation of state law, required its police officers to issue more money sanctions tickets than non-monetary warnings.  Delaney claimed that he had sent his complaint to the Attorney General’s Office twice - first in April 2014 and then again (after learning that this report had been lost by the Attorney General’s Office) in October 2014.


The District Court granted the Defendant’s motion for summary judgment.  With respect to the adverse employment actions that occurred after the April 2014 complaint, the District Court held that Delaney had not provided sufficient evidence upon which a jury could find that the Defendants knew of the filing of this complaint.  Thus, the § 1983 claims based on the April 2014 complaint were without merit as “one cannot have been motivated to retaliate by something he was unaware of.”    Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013).  The District Court went on to hold that the §  1983 claims based on the October 2014 complaint (which the Town had been served with in October 2014) must be dismissed as Delaney had not provided sufficient evidence upon which a jury could find that the Defendants had retaliated against him.


The Court of Appeals affirmed the entry of summary judgment by the District Court.  First of all, the Court agreed with the District Court that the § 1983 claims based on the April 2014 complaint were without merit.  In so ruling the Court noted that a plaintiff’s burden to show that a defendant had notice of a complaint allegedly protected by the First Amendment can be shown either by direct evidence of such notice or by evidence from which a jury reasonably could infer that such notice had occurred.  The Court went on to conclude that mere close temporal proximity between the time that a complaint was made and the time that an allegedly adverse action occurred is not sufficient for a jury reasonably to infer that the defendant had notice of the complaint.



The Court of Appeals also agreed with the District Court that, even though it was undisputed that the Defendants had notice of the October 2014 complaint, the Plaintiff’s § 1983 claims based on this complaint were without merit as the Plaintiff had not demonstrated a genuine issue of material fact as to whether the Defendants had retaliated against him for the filing of that complaint.  Although Delaney was sent, just three days after he filed and served the October 2014 complaint, an email from a police sergeant chastising Delaney for his handling of a 911 call, this email was not actionable as retaliation because “isolated comments by a supervisor that were critical of plaintiff’s job performance are without more too trivial to deter a person of ordinary firmness from exercising First Amendment rights” especially since the email in question was “too mild to constitute the kind of adverse employment action that could ground a First Amendment retaliation claim.”  The Court also rejected Delaney’s claims that his assignment in May 2015 to a position that forced him to forego the opportunity to earn highly remunerative overtime pay and his suspension in December 2015 were retaliatory, since this assignment and later suspension occurred respectively seven and fourteen months after the Defendants knew that Delaney had filed his complaint.  Accordingly, the Court concluded that given the substantial passage of time, as well as the absence of any other supporting evidence of causation, Delaney has not provided a sufficient basis from which a jury could reasonably conclude that there was a causal connection between his complaint and these adverse actions.


Due Process

Clukey v. Town of Camden, 894 F.3d 25 (1st Cir. June 25, 2018)

Clukey, a dispatcher for the Camden Police Department, was laid off when the town outsourced its dispatching functions.  After the layoff, Camden hired individuals for other Police Department positions.  Clukey filed suit under § 1983, claiming Camden violated his due process rights when it failed to provide him with notice and a hearing before deciding not to recall him for these positions.  At trial, a jury found for Camden, concluding that the applicable collective bargaining agreement’s recall rights provision required Clukey to file his mailing address and telephone number with the Town Manager as a condition precedent to triggering any recall rights.  Having failed to make the contract-required filing, Clukey had no recall rights.

The Court of Appeals affirmed the jury’s verdict.  Although recognizing that state law can create a constitutionally protected property interest in a public employment contract, it rejected Clukey’s arguments that the trial court erred in placing the burden on him to prove that the contract’s recall rights provision’s filing requirement was not a condition precedent to his due process claim and in allowing Camden’s witnesses to offer their interpretation that it was.  The Court found that, as the plaintiff, Clukey properly bore the ultimate burden to prove his § 1983 claim, including his contention that the contract’s language did not require him to file his contact information as a precondition to being considered for recall.  And, having failed to argue that the jury was tainted by hearing the supposed inadmissible testimony, Clukey waived any argument of prejudice.  Because he did not trigger his right to recall as required under the contract, Clukey was not deprived of a protected property interest and there was, therefore, no violation of his due process rights.



Kando v. Rhode Island State Board of Elections, 880 F.3d 53 (1st Cir. Jan. 22, 2018)

Kando, terminated from his position as executive director of Rhode Island Board of Elections, brought suit under § 1983 alleging that his firing deprived him of his employment without due process of law and otherwise violated the Due Process Clause by stigmatizing him without providing a name-clearing hearing.  The District Court allowed the Board’s motion for judgment on the pleadings, ruling that Kando, an at-will employee, had failed to establish a cognizable property interest in his continued employment, foreclosing both § 1983-based claims.

On appeal, the Court of Appeals affirmed.  To prevail on a deprivation-of-property claim, a plaintiff must show that he had a legitimate claim of entitlement to continued employment arising out of state law, that is, state statute, policy, rule or contract.  Here, the Court found that Rhode Island law plainly designated Kando an “unclassified” employee serving at the Board’s pleasure and had, therefore, no reasonable expectation of continued public employment.  Thus, Kando failed to allege facts showing a constitutionally protected property interest in his job.

As to Kando’s stigmatization (deprivation-of-liberty) claim, the Court disagreed with the District Court, noting that even where a public employee has no constitutionally protected property interest in continued government employment, there are circumstances in which his dismissal may so damage his reputation that his liberty interest, separately protected under the Due Process Clause, is infringed.  In such instances, the Constitution requires that the employer afford the ex-employee an opportunity to dispute the stigmatizing allegations and clear his name.

The Court nevertheless affirmed the District Court’s ruling, finding that Kando’s pleading had failed to offer facts showing Board statements sufficiently stigmatizing to impact his liberty interest.  A plaintiff pursuing a stigmatization claim against a public employer must satisfy a five-part test: 1) the challenged statements must be false; 2) they must have seriously damaged the employee’s reputation and standing in the community; 3) they must have been intentionally publicized by the government employer; 4) they must have been made in conjunction with the employee’s termination; 5) and the government must have denied the employee’s post-termination request for a name-clearing hearing (citing Bishop v. Wood, 426 U.S. 341, 348-49 (1976)).  Here, Kando’s allegations – that the Board “routinely and regularly portrayed [Kando]’s role and actions in various controversies inaccurately and falsely” and that “after defaming and tarnishing him and his reputation, the Board denied [Kando] a full and fair opportunity to respond and clear his name and reputation” – fell far short of stating a plausible deprivation-of-liberty claim.



First Amendment

Gorman v. Rensselaer County, 910 F.3d 40 (2d Cir. December 6, 2018).


Plaintiff Gorman, a corrections officer employed by Rensselaer County, brought § 1983 claims against the County, the County’s sheriff and other related individuals alleging that the Defendants harassed him in retaliation for him reporting Patricelli, a sergeant corrections officer who had been the boyfriend of Gorman’s sister for 27 years, to the state’s Division of Criminal Justice Services because Patricelli ran a criminal background check on the new boyfriend of Gorman’s sister.  Gorman’s report to DCJS led to its referral of Patricelli’s actions to the local District Attorney.  As a result, Patricelli was demoted, suspended from work for ten months, and pled guilty to a misdemeanor.


The District Court granted the Defendants’ motion for summary judgment on the basis of qualified immunity, on the grounds that a reasonable corrections officer would not have known that it was clearly established law that Gorman’s speech (the reporting of Patricelli) constituted a matter of public concern.  The Court of Appeals affirmed on the same basis.


The Court of Appeals, in an opinion supported by two of the three circuit judges on the panel, first noted that only employee speech about a matter of public concern is protected from retaliation by the First Amendment.  To constitute a matter of public concern, employee’s speech “must be fairly considered as relating to any matter of political, social, or other concern to the community” and cannot be speech that “primarily concerns an issue that is personal in nature and generally related to the speaker’s own situation, such as his or her assignments, promotion, or salary.”   It is relevant to consider “whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.”  The Court then noted that qualified immunity protects public officials from § 1983 liability when one of two conditions is met: (i) the defendant’s action did not violate clearly established law, or (ii) it was objectively reasonable for the defendant to believe that his actions did not violate such law.


The Court concluded that, although exposure of misconduct by a law enforcement officer generally is of great consequence to the public, there was no evidence in this matter that any of the Defendants were engaged in a pattern of conduct that might concern the public.  In addition, the Court noted that “Patricelli’s isolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer money.”


Accordingly, the Court held that Gorman’s report of Patricelli was in the context of “a volatile, intra-family feud that embroiled Patricelli and the Gorman siblings.  That context indicates that the speech primarily concerned an issue that was personal in nature, was calculated to redress Gorman’s personal grievances against Patricelli, and had no broader public purpose.”  Thus, the Court held that summary judgment in favor of the Defendants must be affirmed on the basis of qualified immunity as a reasonable officer would not have known that it was clearly established law that Gorman’s speech constituted a matter of public concern.


One judge dissented from the Court’s opinion on the basis that it was well established at the time that misuse of a law enforcement database was a matter of significant public concern, especially when the misuse was by a police officer.  To that end, the dissenting judge wrote that even if Gorman had a personal motive for the reporting of Patricelli, the Second Circuit had previously ruled that “it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern.”  See Sousa v. Roque, 578 F.3d 164, 174 (2d 2009).


Colvin v. Keen, 900 F.3d 63 (2d Cir. August 15, 2018).


Plaintiff Colvin, an admissions counselor for SUNY Farmingdale, brought § 1983 claims against four officers of her college for their alleged retaliation against her for exercising her First Amendment rights.  The speech in question occurred when Colvin, who was participating in a lunchtime yoga class in a campus classroom at the time, witnessed the campus police enter the classroom to arrest for trespassing a suspended SUNY Farmingdale employee named Bush who was also attending the yoga class.  Colvin identified herself as an attorney, told the officers and Bush that Bush needed an attorney and union representation, and instructed Bush not to say anything until she had an attorney and union representation.  Colvin then told the officers that she would like to accompany Bush back to the police station.  Two weeks later, Colvin was given a counseling memo stating that her interference in campus police business was unprofessional.  This memo also advised Colvin that going forward it was expected that she would not interfere with the campus police.  Shortly thereafter, Colvin was informed that she would not be reappointed, and Colvin’s college employment terminated about two years later.


The District Court, shortly before the trial was to begin, reconsidered its earlier denial of the Defendants’ motion for summary judgment, and entered summary judgment in favor of all of the Defendants on the grounds that Colvin’s speech was not a matter of public concern but instead was motivated to help Bush.  The Court of Appeals affirmed the entry of summary judgment by the District Court on qualified immunity grounds.


The Court of Appeals first held that the law of the case doctrine did not prevent the District Court for reconsidering its earlier denial of the Defendants’ motion for summary judgment.  Next, the Court held that it did not have to decide if “Colvin’s speech qualified as addressing a matter of public concern because Defendants were protected from both liability and the obligation to defend the case because of qualified immunity.”  More specifically, the Court held that it was not clearly established law that Colvin’s speech was on a matter of public concern.  Although speech to vindicate constitutional rights in the face of alleged police misconduct or to redress illegal discrimination can be matters of public concern, Colvin’s speech “was not addressed to misconduct at all.”  Instead, Colvin’s speech “was advising a co-worker of her constitutional rights, not speaking out against any perceived discrimination or official misconduct.”  Accordingly, the Defendants were entitled to qualified immunity since “there is no clearly established law that merely advising another of a constitutional right necessarily constitutes speech on a matter of public concern.”


Montero v. City of Yonkers, New York, 890 F.3d 386 (2d Cir. May 16, 2018).


Montero, a City of Yonkers police officer and official of the police union, brought claims under § 1983 against the City and several police department officials on the basis that the Defendants had harassed him in retaliation for him speaking out at two police officer union meetings against management decisions made by City police department officials.  This retaliation allegedly included unauthorized police investigations into Montero for insubordination, misuse of sick time, and overtime violations, as well as efforts to expel him from the police officer union. 


The District Court dismissed Montero’s suit on the basis that Montero’s remarks at the union meetings were not made in his capacity as a private citizen, as they were “tangentially related to his official duties” and thus were not protected by the First Amendment in a claim brought under § 1983.  The Court of Appeals affirmed in part (on different grounds) and reversed in part.


First of all, the Court of Appeals rejected the District Court’s holding that Montero’s remarks at the union meetings fell within his responsibilities as a police office and thus were not protected by the First Amendment.  Instead, the Court of Appeals held that Montero made these remarks as a private citizen and not “pursuant to his official employment responsibilities” (as he made these remarks in his role as a union official, a position that he was not required by the police department to hold).  The Court also held that Montero’s remarks arguably addressed a matter of public concern (the management of the police department, such as a decision to terminate certain police units).  On this basis, the Court reversed the dismissal of all claims brought against one individual police officer defendant (Olsen) that had not claimed to be protected by qualified immunity.


With respect to the two police department officials (Moran and Mueller) defendants who claimed protection by qualified immunity, the Court noted that in one of their prior decisions (Weintraub) the Court had “plainly rejected the notion that one is necessarily speaking as a private citizen when acting in his or her union capacity.”  Thus, the Court concluded that qualified immunity protected these two Defendants from § 1983 liability since whether Montero’s statements at union meetings were protected by the First Amendment against retaliation was not beyond debate at the time of their alleged retaliation against Montero.


Finally, the Court affirmed the dismissal of the § 1983 claims against the City, as Montero had not pled an unconstitutional City custom or policy that resulted in illegal retaliation against him for exercising First Amendment rights.  Quite simply, the Court held that the alleged retaliation against Montero was not made by “policymaking officials” at the City and there was no factual claim by Montero that these officials “were aware of a subordinate’s unconstitutional actions and consciously chose to ignore them, effectively ratifying the actions.”                                      


Due Process

Hancock v. County of Rensselaer, 882 F.3d 58 (2d Cir. Feb. 9, 2018)


County jail employees whose medical information had been accessed without their permission sued the county and its officials asserting, among other things, a cause of action under § 1983 for violation of their Fourteenth Amendment substantive due process right to privacy in their medical records.  The employees alleged that their records were improperly accessed around times they took sick leave as part of the County Sheriff’s campaign to rein in jail employees’ excessive sick leave use.  The District Court entered summary judgment for county, relying heavily on Matson v. Board of Education of City School District of N.Y., 631 F.3d 57 (2d Cir. 2011), and holding that the employees failed to show that they had a constitutionally protected right to privacy in their medical records.  The District Court read Matson as limiting the Fourteenth Amendment right to privacy in one’s medical records only to those records that contain evidence of medical conditions that are both serious and stigmatizing, which none of the employees’ records contained.


On appeal, the Court of Appeals vacated the District Court’s decision, holding that the employees had a right to privacy in their medical records under the Due Process Clause even if their conditions were non-stigmatizing.  The Court ruled that it – in Matson or anywhere else – had never held that only medical records documenting conditions of sufficient gravity and stigma qualify for constitutional privacy protection.  Instead, substantive due process categorically protects privacy in certain types of personal information, including medical information, and that an individual’s interest in maintaining such information as confidential is fundamental.  The strength of a privacy interest is relevant to the due process inquiry, but only to determine how strong the government’s interest must be in order to override it.


The Court remanded the case to the District Court for reconsideration of summary judgment on this basis, ordering it to examine whether disputed issues of fact existed regarding whether the records were accessed to maliciously enforce sick leave policies or gain leverage over the employees, which would likely shock the conscience thereby supporting a substantive due process claim, and whether the named individual county officials were entitled to qualified immunity.


McDonough v. Smith, 898 F.3d 259 (2d Cir. Aug. 3, 2018)


After a lengthy criminal proceeding involving a grand jury indictment, a mistrial and a second trial, McDonough, the former Democratic Commissioner of the Rensselaer County Board of Elections, was acquitted in New York state court of forging absentee ballots in a local primary election.  McDonough then brought suit against various county defendants, including the prosecutor, Smith, alleging that under § 1983 they violated his right to due process by fabricating evidence, using it against him and maliciously prosecuting him.


The District Court granted defendants’ motion to dismiss McDonough’s “fabrication of evidence” claim under § 1983 claim as untimely, reasoning that the claim accrued when he knew or should have known that such evidence was being used against him – during the grand jury proceedings and at the first (mis)trial – and not upon his ultimate acquittal in the second trial.  All of the fabricated evidence was presented to him long before the second trial and therefore, the three-year limitations period on § 1983 claims (New York’s three-year limitations period for personal injury claims) had run before he filed suit.  The District Court also dismissed the § 1983-based malicious prosecution claim, holding that Smith, as a prosecutor, was entitled to absolute immunity.


On appeal, the Court of Appeals affirmed.  While recognizing the well-established rule that § 1983’s limitations period is based on the statute of limitations for the analogous state-law claim, the Court emphasized that the time at which a § 1983 claim accrues is a question of federal, not state, law.  To be sure, the Fifth and Fourteenth Amendments’ Due Process Clauses grant individuals the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer, but under federal law such a claim accrues when a plaintiff learns of the fabrication and it is used against him and his liberty has been deprived in some way.  The Court of Appeals concluded that for McDonough, this was, at the earliest, when he was indicted and arrested and, at the latest, by the end of his first trial, all long before his ultimate acquittal and more than three years before he brought suit.


Importantly, and creating a split in circuit court authority, the Court acknowledged that the Third, Ninth, and Tenth Circuits have held differently.  Those circuits have ruled that the due process fabrication cause of action accrues only after criminal proceedings have terminated because fabrication of evidence claims are analogous to state-law claims of malicious prosecution.  Malicious prosecution cases require termination of the criminal proceeding in the defendant’s favor before suit may be brought.


The Court of Appeals concluded that although McDonough’s § 1983-based malicious prosecution claim was timely (under the analogous state law, malicious prosecution claims do not accrue until the underlying criminal proceedings terminate), it nevertheless found that Smith, as a prosecutor, is protected by absolute immunity.  Noting that prosecutors are entitled to only qualified immunity for acts that are investigatory in nature, the Court of Appeals held that McDonough’s malicious prosecution claim involved mainly Smith’s prosecutorial function – acting as an advocate for the state, initiating a prosecution and at trial – and is therefore barred by absolute immunity.



First Amendment

No reported cases

Due Process


Campbell v. District of Columbia, 894 F.3d 281 (D.C. Cir. June 29, 2018)


Campbell, former Chief Financial Officer of the District of Columbia’s Department of Health Care Finance, was terminated following accusations that she had improperly influenced the bidding process for District healthcare contracts.  During its investigation into the accusations, District officials forwarded relevant emails and other documents, which resulted in newspaper articles about the allegations against Campbell and her ultimate termination.


Campbell then sued under § 1983, alleging, among other claims, that the District violated her Fifth Amendment due-process rights by unlawfully terminating her employment and leaking untrue allegations about her to the press, all without due process.  Campbell’s claim included “reputation-plus” and “stigma-plus” claims. A plaintiff makes out a reputation-plus claim when the government takes certain adverse actions and defames the plaintiff, which occurred, Campbell argues, when the District unlawfully terminated her employment and leaked to the press defamatory information.  A plaintiff makes out a stigma-plus claim when the government takes certain adverse actions and those actions create a stigma or other disability that foreclosed the plaintiff’s freedom to take advantage of other employment opportunities, which took place Campbell contends, when the District’s actions against her precluded her from working in her chosen field.  After trial, the jury returned a verdict for the District on the reputation-plus claim, but for Campbell on the stigma-plus claim.


On appeal the Court of Appeals affirmed the jury’s verdict, concluding that the District’s main argument – Campbell’s stigma-plus claim should fail as a matter of law because it was based on government speech, not government action, and therefore was merely a disguised reputation-plus claim (on which the District won at trial) – was not preserved for appeal.  The Court found that it need not reach the merits of this argument because the District did not include it in its Fed. R. Civ. P. 50(a) motions for judgment as a matter of law during trial, even though the District raised it in its Rule 50(b) post-judgment motions.  Because Rule 50(b) only allows a party to renew its earlier Rule 50(a) arguments, the District waived its argument raised for the first time in its Rule 50(b) motion.


On appeal, the District also argued (and preserved in its Rule 50(a) motions) that Campbell did not establish that she had been deprived of her liberty interest in pursuing a chosen profession because she found full-time employment within two years of her termination.  The Court of Appeals rejected this argument, emphasizing that there are two ways for a plaintiff to establish that she has been foreclosed from her profession: 1) by showing the government’s adverse action formally or automatically excludes her from some category of work, such as with debarment; or 2) by showing that the government’s action, although not a formal exclusion, has the broad effect of largely precluding her from pursuing her chosen career.  The Court concluded

that the jury reasonably found that Campbell’s two years of unemployment were attributable to the negative press coverage and that the District’s actions therefore had the broad effect of largely precluding Campbell from pursuing her chosen career.



December 2018



Will a First Amendment Retaliatory Arrest Claim Survive Despite

Probable Cause For The Arrest?


By Bob Christie

Christie Law Group, PLLC



Does the existence of probable cause for an arrest defeat a retaliatory arrest claim under 42 U.S.C. § 1983?  The U.S. Supreme Court will decide that issue in a case argued on November 26, 2018 called Nieves v. Bartlett.  The outcome of the decision may dramatically increase the number of Section 1983 claims based on the 1st Amendment that will survive summary judgment and require a trial, even when the 4th Amendment false arrest claim has been dismissed based on the existence of probable cause, particularly when the arrest was for minor crimes.  If your civil rights and public entity liability practice includes the defense of police officers, you will want to be watching this case closely.


Nevada has Burning Man, but Alaska has Arctic Man, an outdoor spring event that combines ski racing of various forms with alcohol consumption.  Mr. Bartlett, an attendee in the full spirit of the event, was arrested by Alaska State Trooper Nieves.  Prior to the arrest, Trooper Nieves asked Bartlett to put his keg inside his RV and Bartlett refused to engage in the conversation.  When Trooper Weight began speaking with another attendee, a minor, Bartlett found his voice, telling the young man not to speak with the trooper and verbally challenging Trooper Weight’s authority to speak to the minor.  Bartlett stood close to Weight while proffering his advice in a loud tone, prompting Weight to shove him away and leading Trooper Nieves to make the arrest.  Bartlett claims that while making the arrest, Trooper Nieves remarked: “Bet you wish you would have talked to me now.”


Bartlett brought suit under §1983 alleging false arrest and excessive force under the 4th Amendment.  He also alleged that the arrest was in retaliation for him refusing to speak to Trooper Nieves in violation of his 1st Amendment rights.  The District Court granted summary judgment on qualified immunity, dismissing all claims.  The Ninth Circuit affirmed the dismissal on qualified immunity of the 4th Amendment claims, but reinstated the 1st Amendment claim based in part on its 2013 decision in  Ford v. City of Yakima (our firm defended Yakima successfully in the district court on summary judgment, but the Ninth Circuit reversed) where it held that “an individual has a right to be free from retaliatory police action, even if probable cause existed for that action.”  The Supreme Court granted certiorari to resolve the split in the federal circuits and answer the question not reached in Lozman v. City of Riviera Beach, 133 S.Ct. 735 (2013).


In oral argument it seemed clear that the justices were looking for a middle ground rule that would allow certain kinds of retaliatory arrest claims to survive a probable cause determination while at the same time not opening the floodgates on every “you arrested me for what I said, not what I did” claim to survive to trial.  My prediction is that they will articulate such a rule, distinguishing cases involving arrests for serious offenses—where probable cause will bar a 1st Amendment retaliatory arrest claim—from those where the arrest was on minor grounds such as obstruction or harassment—where probable cause will be one factor in the analysis. 


Police officers need guidance and rules that can be executed in tense and rapidly developing situations without fear of being sued.  This case provides the Supreme Court with an opportunity to fashion such guidance.  Stay tuned.


September 2018


Click below to read this month's update by the Civil Rights & Public Entity Liability Section:


Janus v. American Federation of State, County and Municipal Employees, Council 31 585 U.S.

(June 27, 2018)



Food is Speech: New Eleventh Circuit Decision on Expressive Speech

Submitted by Robert C. Lockwood



When I finished reading the Eleventh Circuit’s recent opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, No. 16-16808, 2018 WL 4000057 (11tt Cir. Aug. 22, 2018), I immediately thought of the famous scene from “When Harry Met Sally” which concludes with the line: “I’ll have what she’s having.”  (If you’re not familiar with the scene, here’s a link to YouTube:  Food, and the sharing of food, can convey a message (sometimes more graphically than others).  And, efforts to convey a message through the sharing of food are protected by the First Amendment.


I love movies, and I love opinions that aren’t painfully boring.  Judge Adalberto Jordan could have launched into a mundane recitation of First Amendment law.  Instead, he began his opinion with this accurate, and entertaining observation:


In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for “not giv[ing] the cheer” at the banquet depicted in Shakespeare’s play. As she explained: “To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it.” William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).


Food Not Bombs, 2018 WL 4000057 at *1. 

The entire Food Not Bombs opinion can be distilled down to the final words of Judge Jordan’s first sentence:  “context matters.”  Fort Lauderdale Food Not Bombs (“FLFNB”) held weekly events at Stranahan Park in Fort Lauderdale, Florida – a park that has traditionally been a battleground over the City’s attempts to reduce the visibility of homelessness.  At FLFNB’s events, it distributed vegetarian or vegan food to anyone who chose to participate, including the homeless.  Banners were displayed and literature distributed, aimed at communicating the message that “society can end hunger and poverty if we redirect our collective resources from the military and war and that food is a human right.”  Food Not Bombs, 2018 WL 4000057 at *1.  The City of Fort Lauderdale passed a new public welfare ordinance regulating the distribution of food to the public without cost, which effectively outlawed FLFNB’s events.  FLFNB sued under 42 U.S.C. § 1983, alleging a violation of its First Amendment rights.  The trial court found no violation of the First Amendment, finding that the food sharing events did not convey a particularized message, and that they required banners and literature to convey their message.  Judge Jordan’s panel reversed.


While “context matters,” Judge Jordan’s opinion also focused on the relatively low bar that a plaintiff must meet in an “expressive speech” case.  “[I]n determining whether conduct is expressive, we ask whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.”  Food Not Bombs, 2018 WL 4000057 at *3.  In deciding that FLFNB intended to convey “some sort of message,” Judge Jordan stressed the importance of context.

History may have been quite different had the Boston Tea Party been viewed as mere dislike for a certain brew and not a political protest against the taxation of the American colonies without representation. ….


It should be no surprise, then, that the circumstances surrounding an event often help set the dividing line between activity that is sufficiently expressive and similar activity that is not.  Context separates the physical activity of walking from the expressive conduct associated with a picket line or a parade. …. Context also differentiates the act of sitting down—ordinarily not expressive—from the sit-in by African Americans at a Louisiana library which was understood as a protest against segregation.


Food Not Bombs, 2018 WL 4000057 at *4.  Judge Jordan found that five aspects of the context of FLFNB’s events demonstrated that they were intended to convey some sort of message:

  1. FLNB used banners and literature to convey its message, which distinguished its events from a simple picnic. 


  2. The food sharing events were open to everyone which “in and of itself, has social implications.”


  1. The events were held in Stranahan Park, near government buildings, and parks have been “historically associated with the exercise of First Amendment rights.”


  2. The background of the City’s concerns with homelessness added “to the likelihood that the reasonable observer would understand that FLFNB’s food sharing sought to convey some message.”


                5.            The sharing of food, itself, sends a message:


Like the flag, the significance of sharing meals with others dates back millennia. The Bible recounts that Jesus shared meals with tax collectors and sinners to demonstrate that they were not outcasts in his eyes. See Mark 2:13–17; Luke 5:29–32. In 1621, Pilgrims and Native Americans celebrated the harvest by sharing the First Thanksgiving in Plymouth. President Abraham Lincoln established Thanksgiving as a national holiday in 1863, proclaiming it as a day of “Thanksgiving and Praise to our beneficent Father” in recognition of blessings such as “fruitful fields and healthful skies.” John G. Nicolay & John Hay, 2 Abraham Lincoln: Complete Works 417–418 (1894). Americans have celebrated this holiday ever since, commonly joining with family and friends for traditional fare like turkey and pumpkin pie.


Food Not Bombs, 2018 WL 4000057 at *6.

In summary, FLFNB engaged in protected expression, because a reasonable person viewing FLFNB’s food-sharing events, in context, would infer some sort of message.  So, in parting, I wish you:  “Bon appetit!”  May your future gatherings, and sharing of food convey the message of friendship and camaraderie that I have come to love in the FDCC.



July 2018


Click below to read this month's update by the Civil Rights & Public Entity Liability Section:


Private Actor Liability Under 42 U.S.C. § 1983 –

All The Risks Without The Armor?

Ted Buck

Frey Buck, P.S.

1200 Fifth Avenue, Suite 1900

Seattle, WA 98101




April 2018

Submitted by: Casey C. Stansbury


Service Animals as a Reasonable Accommodation under the Americans with Disabilities Act

Casey C. Stansbury


Governmental organizations are required by the Americans with Disabilities Act to allow their employees and members of the public to bring service animals onto government property.  28 CFR § 35.136.  Pursuant to federal law, the only animals that can qualify as service animals are dogs or miniature horses.  Id. Unless a state statute states otherwise, there is no such thing as a service cat or bird, etc.  When someone brings an animal onto government property as a service animal, the organization may ask two questions:


1) Is this animal required because of a disability?


2) What work or task has it been trained to perform?


Id.  Notably, the organization cannot use these questions as a jumping off point to delve further into the facts of the situation.  For example, it cannot ask “about the person’s disability, require medical documentation, require a special identification card or training documentation.”   U.S. Department of Justice, Civil Rights Division, Disability Rights Section, ADA 2010 Revised Requirements Service Animals, July 2011. 


In addition, it is important to remember that the uses for service animals have moved far beyond the proverbial “seeing eye dog.”  Service animals can now be trained to help their masters in a variety of ways, they can:


·      alert a diabetic to low blood sugar


·      remind a depressed person to take medicine


·      detect the onset of seizures


·      help individuals get around by providing steady support, get out of a chair, or climb stairs


·      retrieve or carry needed items for an owner.


See 28 C.F.R. § 36.104(5).


In the past, a caveat to this analysis was that “emotional support,” “therapy,” “comfort,” or “companion” animals do not meet the definition of a service animal.  According to the U.S. Department of Justice, a service animal must be trained to perform some task for its owner-the comfort an animal provides just by being there for its owner is not considered a task.  U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Frequently Asked Questions About Service Animals and the ADA, July 20, 2015.  The ADA regulations go so far as to specify that emotional support animals do not qualify as “service animals”:


The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.


28 CFR § 35.104.


However, the Equal Opportunity Employment Commission (the “EEOC”) has recently added a new dimension to this analysis in the area of reasonable accommodations for employees.  Pursuant to the ADA, an employer, including state and local governments, must provide a “reasonable accommodation” to allow an employee with a disability to allow him to perform his job, unless doing so would result in an undue hardship to the employer.   See generally, Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 (11th Cir. 1997).  The EEOC recently filed suit on behalf of the owner of an emotional support animal, arguing the animal might be a reasonable accommodation for an employee and must be permitted in the workplace, despite not meeting the requirements of  28 CFR § 35.136.


In the Amended Complaint for EEOC v. CRST Inter., Inc., No. 1:17-cv-000129 (N.D. Iowa, filed November 3, 2017) (originally filed in M.D. Fla. March 2, 2017), the EEOC alleges that a company which refused to accommodate a long distance truck driver’s request for an emotional support animal to accompany him on his trips has violated Title I and Title V of the ADA.  In CRST, the driver alleges that he has “impairments, PTSD and mood disorder” substantially limiting the major life activities of “sleeping, brain function, and thinking.”  Id. Am. Compl. ECF No. 19 at ¶ 15.  As an accommodation for his disability, the driver requested his emotional support dog be allowed ride with him as he drove. Id.  CRST company policy ordinarily prohibits drivers from bringing their pets.  Id. Am. Compl. ECF No. 19 at ¶ 18.  In the Amended Complaint, the EEOC argues CRST unlawfully denied the driver’s request in accordance with the company’ no-pets rule. Id. ECF No. 19 at ¶ 18. The EEOC alleges that the denial is a violation of the ADA and that the driver’s dog should be allowed as a reasonable accommodation.  Id. Am. Compl. ECF No. 19  at ¶ 19


CRST provides an interesting new wrinkle in the analysis of whether emotional support animals should be allowed in a building on government property.  The case makes it apparent that it is the EEOC’s position that an employer may be required to allow an animal in the workplace as a reasonable accommodation even if that animal does not meet the test set out in  28 CFR § 35.136.    



March 2018

Submitted by: Kay H. Hodge



Guido v. Mount Lemmon Fire Certiorari Granted 


The U.S. Supreme Court has granted certiorari in the case of Guido v. Mount Lemmon Fire District, 859 F.3d 1168 (9th Cir. 2017).  The issue is:


Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to

private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th,

7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of

any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.


As this issue has significant implications for public employers and their insurers, the FDCC Amicus Committee is considering whether the FDCC should file or join others in an amicus brief in support of the Mount Lemmon Fire District, the public employer.  Please let me know whether you think that the FDCC should file an amicus brief and what FDCC could offer besides the arguments in the briefs filed by the parties.    In addition, if the FDCC Board approves the filing, would you and your firm be interested in drafting the amicus brief?  Note that the briefs are currently due on April 9, but Mount Lemmon is seeking an extension until May 11.



Kay H. Hodge

Stoneman, Chandler & Miller LLP

Boston, Massachusetts 





February 2018

Submitted by: Robert C. Lockwood


(click here to download a .pdf of this section update)






Robert C. Lockwood

Wilmer & Lee, P.A.


            “Death comes like a thief in the night,” and so does the deadline for FDCC newsletter submissions.  When I nonchalantly agreed to provide a submission for our section newsletter, I failed to anticipate that the Super Blood Moon would result in a substantial uptick in crazy litigation at the start of February.  Thus, when our fearless leader, Kay Hodge, politely reminded me of my upcoming deadline, I did the lawyerly thing – I procrastinated.  But, thankfully, Justice Clarence Thomas and the Notorious RBG are always there to pull me out of the fire.  On January 22, 2018, the United States Supreme Court released two opinions which can impact cases involving governmental entities.  So, without further ado, here they are:


“Peaches” and Probable Cause


District of Columbia v. Wesby, No. 15-1485, 2018 WL 491521 (Jan. 22, 2018)


            In Wesby, Justice Thomas provided an extensive discussion of probable cause and qualified immunity.  And, we’ll get to that discussion in a minute.  But, the facts of this case are too good ignore (and they are central to Justice Thomas’s analysis).  On March 16, 2008, District of Columbia police officers received a complaint about loud music and illegal activities in a house that had been vacant for several months.  Upon their arrival, the inside of the house was in disarray and looked like a vacant property. The officers smelled marijuana and observed beer bottles and cups of liquor on the floor, which was so dirty that one of the partygoers refused to sit on it during questioning. They found a make-shift strip club in the living room, and a naked woman and several men in an upstairs bedroom. Many partygoers scattered when they saw the officers, and some hid. Some partygoers told the officers that they were there for a bachelor party – but could not name the bachelor.  Each partygoer said that someone had invited them to the party, but no one could say who. Two women “working” the party identified “Peaches” as the house's tenant and said that she had given the partygoers permission to have the party. But Peaches was not actually at the party. When officers spoke by to Peaches by phone, she initially she claimed that she was renting the house and had given the partygoers permission to have the party. She then became evasive and hung up the phone.   Ultimately, the officers got Peaches on the phone again and she admitted that she did not have permission to use the house. The officers then contacted the owner of the house, who confirmed that he had not given Peaches (or anyone else) permission to be in the house. The officers then arrested the partygoers for unlawful entry.

            The partygoers sued for false arrest under the Fourth Amendment, and the trial court took the unusual step of granting summary judgment in the partygoers’ favor.  Under District of Columbia case law, probable cause to arrest for unlawful entry required “evidence that the alleged intruder knew or should have known, upon entry, that such entry was against the will of the owner.”  The trial court found that the officers lacked any such evidence.  On appeal the D.C. Circuit affirmed, and further affirmed denial of qualified immunity based upon the lack of such evidence.  In short, the police officers couldn’t prove that the partygoers didn’t subjectively think they were allowed to be at the party; therefore, the officers couldn’t possess probable cause.

            Justice Thomas came to rescue of the police officers, and was particularly critical of the opinions below.  He found:  “Considering the totality of the circumstances, the officers made an ‘entirely reasonable inference’ that the partygoers were knowingly taking advantage of a vacant house as a venue for their late night party.”  Justice Thomas was particularly critical of the panel majority of the D.C. Circuit for two reasons.  First, the panel viewed the facts one-by-one and explained them away, rather considering circumstances as a whole.  Second, the panel mistakenly believed that it could dismiss any circumstances that were “susceptible of an innocent explanation.”  For example, the panel brushed aside the drinking and lap dancing as “consistent with” a bachelor party.  Justice Thomas found that the proper inquiry was “whether a reasonable officer could conclude – considering all of the surrounding circumstances, including the plausibility of the explanation itself – that there was a ‘substantial chance of criminal activity.’”  And, the almost humorous facts recited above certainly support such a reasonable conclusion.

            Not content to grant victory solely on the probable cause issue, Justice Thomas also found that the officers were entitled to qualified immunity.  In short, even assuming that the officers lacked probable cause to arrest the partygoers, they reasonably but mistakenly concluded that probable cause was present.

Grace Period or Stop the Clock?


Tolling of State Statutes of Limitations in Supplemental Jurisdiction Cases


Artis v. District of Columbia, No. 16-460, 2018 WL 491524 (Jan. 22, 2018)


            This one doesn’t quite roll off the tongue like “Peaches and Probable Cause.”  Nevertheless, Ardis presents an interesting case in which Justice Roberts teams up with the more-liberal members of the Court.  As you know, plaintiffs routinely file state law claims along with federal claims in federal court.  When trial courts dismiss federal claims, they routinely dismiss the state law claims without discussion and without prejudice to refile in state court.  The issue in Ardis concerned the time within which the state law claims must be refiled in state court.  The applicable statute is 28 U.S.C. § 1367(d), which provides:


The period of limitations for any [state] claim [joined with a claim within federal court competence] shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer period.


The plaintiff in Ardis refiled her state law claims 59 days after dismissal of her federal suit. I’m no math major, but 59 days is longer than 30 days.  So, it appears that the plaintiff missed her time to refile.


            But, a crafty lawyer argued that the word “tolled” in Section 1367(d) “stopped the clock” on the statute of limitations for plaintiff’s state law claims.  When she initially filed in federal court, nearly two years remained on her three-year state law statute of limitations.  According to the Plaintiff, that statute of limitations was frozen-in-place during the federal litigation.  So, when the federal trial court dismissed without prejudice to refile, the clock restarted and Plaintiff possessed nearly two years to refile in state court – not the 30 days referenced in Section 1367(d).


            The counter-argument is the one adopted by the District of Columbia state court.  It matches with my initial reading of Section 1367(d).  Under that interpretation, the state law statute of limitations continues to run after the filing of litigation, but the plaintiff is given a 30 day “grace period” to refile in state court.  If the statute of limitations expires before dismissal of the federal claims, and if the plaintiff waits more than 30 days to refile, the state law claims are barred.


            Justice Ruth Bader Ginsburg wrote the opinion adopting the plaintiff’s argument.  Relying first upon Black’s Law Dictionary, she found that “[o]rdinarily, ‘tolled,’ in the context of a time prescription like § 1367(d), means that the limitations period is suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off.”  Ultimately, she announced the following rule for the statute:  “the limitations clock stops the day the claim is filed in federal court and, 30 days postdismissal, restarts from the point at which it had stopped.”  “Including 30 days within § 1367(d)’s tolling period accounts for cases in which a federal action is commenced close to the expiration date of the relevant state statute of limitations.  In such a case, the added days give the plaintiff breathing space to refile in state court.”


            Justice Ginsburg’s decision has wide-ranging implications for state-court litigation across the United States.  At least in the great state of Alabama, it overrules the Alabama Supreme Court’s decision in Weinrib v. Duncan, 962 So.2d 167 (Ala. 2007) which adopted a “grace period” reading of Section 1367(d).




January 2018
Submitted by: Jane M. Lynch & Jared Wagner

Can police obtain cell-site location information without a warrant?
The crossroads of the Fourth Amendment, privacy, and technology; addressing whether a new test is required to determine the constitutionality of searches pertaining to electronic information

While the majority of recent media coverage regarding the Supreme Court has focused on travel bans and allegations of discrimination, another case with even greater possible implications for both constitutional jurisprudence and average Americans is currently before the Court.  In Carpenter v. United States (S.C. Docket No. 16-402) the Court is being asked to determine whether police investigating a crime must have probable cause and a warrant to obtain cell-site location information (CSLI).

CSLI includes the date, time, and length of each call, the phone numbers involved with each call, and the cell phone tower sites where the call began and ended.  Such information is obtained and saved by wireless carriers as part of their ordinary course of business to assist with the process of connecting customers’ phones to the strongest available signal.  Experts are able to utilize CSLI to determine a phone’s approximate location on specific dates and times.  The Stored Communications Act (SCA) allows governmental entities to require wireless carriers to disclosure CSLI upon “specific and articulable facts showing that there are reasonable grounds to believe that” the information is “relevant and material to an ongoing criminal investigation.”  18. U.S.C. § 2703(d).

The outcome of the Carpenter case has the potential to establish an entirely new framework for analyzing whether electronic information shared with third-parties is entitled to constitutional protection.  This, in turn, could give rise to a new breed of civil rights claims related to the manner in which police obtain and utilize electronic information in general, and CSLI specifically.

A string of armed robberies and a conviction using CSLI obtained upon “reasonable grounds”

Between December 2010 and March 2011, a group of about 20 men were involved in a string of armed robberies committed against Radio Shack and T-Mobile stores in the greater Detroit area.  Police arrested a suspect, who confessed and gave the police his cell phone information along with the cell phone numbers of his accomplices.  Rather than obtaining a warrant supported by probable cause, the police obtained a court order pursuant to the SCA upon a showing of reasonable grounds, directing the various wireless carriers to provide the CSLI for the accomplices’ phone numbers.  With respect to Carpenter specifically, the police sought and obtained 127 days of CSLI for his phone number. 

Based on the CSLI from Carpenter’s phone, the police were able to establish that he was within a half-mile to two miles of each robbery site on the same dates and times that each of the robberies had occurred.  Carpenter filed a motion to suppress the CSLI arguing that it should have been obtained with a warrant supported by probable cause. That motion was denied, and Carpenter was sentenced to 116 years after a jury conviction.

Carpenter’s conviction is affirmed based on the third-party doctrine as set forth in prior Supreme Court case law

On appeal, the Sixth Circuit affirmed Carpenter’s conviction.  United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016).  The majority decision held that Carpenter’s CSLI was not protected by the Fourth Amendment because it did not involve a physical intrusion on Carpenter’s property rights (the wireless carrier created and owned the CSLI) and the information contained in the CSLI was voluntarily provided by Carpenter to a third-party (his wireless carrier).  Carpenter, 819 F.3d at 885-90.  Thus, the Sixth Circuit found that Carpenter did not have any reasonable expectation of privacy in CSLI.  Id.

In reaching this decision, the majority relied upon several older Supreme Court cases in which a distinction was made between the content of communications (which is entitled to Fourth Amendment protection) and the information necessary to deliver the communications (which is not entitled to Fourth Amendment protection).  Id. at 886 (citing Smith v. Maryland, 442 U.S. 735, 743 (1979) (in which the Supreme Court held that the installation of a device at the telephone company that tracks the numbers dialed from a home phone does not implicate the Fourth Amendment); Ex Parte Jackson, 96 U.S. 727, 733 (1878) (in which the Supreme Court held that a search warrant is required to open a letter but the form, weight, and information on the letter, including the recipient’s name and address, are not constitutionally protected).

The majority also distinguished as inapplicable several more recent decisions from the Supreme Court involving electronic communications/monitoring.  The first case discussed by the majority, United States v. Jones, 565 U.S. 400 (2012), held that placing a GPS monitoring device on a vehicle requires a warrant supported by probable cause.  Carpenter, 819 F.3d at 888-89.  That case was distinguished on the grounds that it involved a physical intrusion onto the suspect’s property, whereas in this case the police obtained the records from a third-party.  Id.  Additionally, the majority distinguished the precision of a GPS device, which allows police to monitor the whereabouts of a party to within 50 feet, to CSLI, which only allows police to determine the approximate whereabouts of a person within a 120 radial degree half-mile to two mile vector of a cell tower.  Id.  The second case considered and distinguished, Riley v. California, 134 S. Ct. 2473 (2014), held that police may not access the contents of a cell phone without a warrant.  Carpenter, 819 F.3d at 889-90.  The Sixth Circuit found that Riley “illustrates the core distinction” between police reviewing the contents of communications and/or devices and reviewing data from devices collected by third-parties regarding the device’s location.  Id.

The majority also noted that there was no societal expectation of privacy in CSLI as evidenced by the fact that Congress had enacted a statute expressly allowing the government to obtain such information upon only a showing of reasonable grounds.

A concurring judge suggests the need for a new test to address Fourth Amendment issues related to cellular and internet communications

In a separate concurring opinion, Judge Staunch expressed concern that the previous tests set forth by the Supreme Court and relied upon by the majority regarding privacy concerns were inadequate for dealing with privacy issues related to cellular and internet communications.  Carpenter, 819 F.3d at 893-97.  Judge Staunch’s conclusion cited to Justice Sotomayor’s statement in her concurring opinion in Jones stating that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third-parties.  This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third-parties in the course of carrying out mundane tasks.”  Id. at 895 (quoting Jones, 132 S.Ct. at 957) (Sotomayor, J., concurring) (citations omitted).

Thus, Judge Staunch concluded that a new test must be developed to determine whether a warrant supported by probable cause is necessary for police to obtain information provided to third-parties as the result of cellular and internet communications.  Carpenter, 819 F.3d at 895-96.  He did not, however, propose the parameters for any such test.  Id.  Moreover, Judge Staunch agreed that Carpenter’s conviction should be affirmed regardless of whether the SCA violated the Fourth Amendment by allowing for police to obtain CSLI without a warrant, because the good faith exception to the exclusionary rule would apply since the officers had obtained the disputed information pursuant to a statutory process that had not been previously invalidated.  Id. at 896.

The Supreme Court accepts certiorari review and conducts oral arguments

Carpenter petitioned the Supreme Court for a writ of certiorari review of the Sixth Circuit’s decision.  On June 5, 2017, the Court granted the petition and agreed to answer the following question posed by Carpenter: “Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

Numerous amicus briefs were filed on both sides of the issue, and oral arguments were held on November 29, 2017. The transcript from these arguments can be found at and the audio can be heard at  While it is impossible to determine the outcome of a case with any kind of scientific certainty based on the oral arguments, the arguments in this case seem to have provided at least some general insights.

Justices Sotomayor and Kagan appear to be firmly in agreement with Judge Staunch that the third-party doctrine previously adopted by the Court should not be applied to information such as CSLI and a new standard is necessary to address the privacy protections afforded electronic communications by the Fourth Amendment.  This stance is not surprising given Justice Sotomayor’s statement cited above from her concurring opinion in Jones.  While not expressly discussing the possible elements for any such new test, the Justices both expressed concern regarding the scope of the search at issue in this case, including the period of time (127 days).

Justice Alito and Chief Justice Roberts appear to support affirming the Sixth Circuit’s decision on the basis of the third-party doctrine.  While the Sixth Circuit’s opinion focused mostly on the Court’s decision in Smith (which is discussed above), the discussion during oral arguments on the third-party doctrine focused mostly on the case of United States v. Miller, 425 U.S. 435 (1976), in which the Supreme Court found that persons do not have privacy interests in bank records reflecting purchases, withdraws, and deposits because such records are compilations of information given to the bank, which is a third-party.  As noted by Justice Alito, bank records and the sort of information found not to be entitled to Fourth Amendment protection in Miller are arguably much more sensitive and personal than the sort of information the government obtained in this case.

Justices Breyer, Kennedy, Ginsburg, and Gorsuch asked pointed questions of both sides, and their positions are harder to predict.  Justice Breyer suggested that the answer to the question is possibly creating an exception to the third-party doctrine rather than scrapping it altogether, such as either limiting the timeframe within which the government would be able to obtain CSLI without a warrant (Carpenter’s attorney suggested a 24 hour rule in his arguments) or creating a specific exception to the third-party doctrine for CSLI akin to exceptions previously recognized for medical records.  Justice Gorsuch’s questions focused on the property interests of customers in CSLI, which, if recognized, could serve as a basis for holding that a warrant is necessary.  Finally, Justice Thomas did not ask any questions during the arguments, as is his usual custom, so it is unclear where he stands on this issue.

Practical advice for police officers and municipalities while the Carpenter decision in pending 

A decision on the merits will, hopefully, clarify this issue and provide guidance for both police officers and municipalities with regard to the manner in which CSLI and other such information should be obtained during the course of criminal investigations.  Until then, however, police will be generally justified in proceeding with obtaining records and information as set forth in the SCA.  In addition to the Sixth Circuit, four other Federal Circuit Courts of Appeals have considered this issue and found that obtaining CSLI through the SCA without a warrant does not violate the Fourth Amendment.  United States v. Stimler, 864 F.3d 253, 263 (3d Cir. 2017) (holding that the transmission of CSLI is involuntary and rejecting the applicability of the third-party doctrine to it, but still finding that the SCA does not violate the Fourth Amendment because individuals lack a reasonable expectation of privacy in CSLI); United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) (finding that the third-party doctrine allows police to obtain CSLI without a warrant); United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).

At this point, the SCA’s reasonable grounds provision has not been ruled unconstitutional by either the Supreme Court or a Federal Appellate Court.  Thus, the issue of whether CSLI is protected by the Fourth Amendment is, at the very least, unsettled and even if the Supreme Court ultimately finds that a warrant and probable cause are necessary to obtain CSLI, any CSLI obtained by the police pursuant to 18. U.S.C. § 2703(d) prior to any such decision should generally be protected from suppression in a criminal matter under the good faith exception. Indeed, Judge Staunch’s concurring opinion in the underlying case is based on that exception, and Justice Alito specifically raised the issue during oral argument asking if Carpenter might not win the war (obtaining a ruling that CSLI requires probable cause and a warrant) but ultimately lose the battle (having his conviction affirmed on the good faith exception).  Likewise, the police should also be protected from individual liability under the clearly established prong of the qualified immunity test. 

There are, however, still several important issues that should be considered when discussing this issue with police and municipalities.  As pointed out by Justice Ginsburg during oral arguments, in the majority of cases police had enough probable cause to obtain CSLI pursuant to a warrant.  Indeed, in this case it seems likely that the police could have obtained a warrant for the CSLI from Carpenter’s phone based on the specific information given to them by his accomplice.  Thus, police should be encouraged to obtain a warrant when they are able to do so.  Additionally, the points raised by the Justices during oral arguments seem to suggest that the scope of the information sought is also important to determining whether a constitutional violation has occurred.  Therefore, police should also consider limiting the scope of their initial request for information as much as is practical.  For example, in this case the police may have considered initially asking for only the CSLI for the dates of the robberies and then seeking additional CSLI, if necessary, based on the knowledge gained from the initial information received.

Municipalities should also consider adopting a formal policy addressing the manner in which CSLI (and other electronic information) are obtained, which directs officers to seek a warrant when available and appropriate.  While the police may be individually protected from civil immunity by the lack of clearly established law on this issue, a municipality’s liability is arguably not subject to that same standard and the more comprehensive and stringent that a municipality’s policy is, whether it be formal or informal, regarding the manner in which CSLI should be obtained by its officers, the better chance that it will not ultimately be held liable if the Supreme Court does find that CSLI is protected by the Fourth Amendment. 


December 2017

Submitted by: Ted Buck


Considerations on “Police Brutality” and the Power of Negativity


We are awash in negative news in our modern, multi-channel information age. Natural disasters seem to follow one upon the heels of another: terrorist attacks from Scandinavia to sub-Saharan Africa dominate headlines; endless wars are pushed to the second page as other, fresh dramatic events usurp the leading role; new and frightening diseases seem to sprout overnight. Studies of modern media reveal that the ratio of negative stories to positive stories is approximately 17 to 1. It has become increasingly clear that negativity sells, and that increasing negativity whets the appetite for more.


We may find it convenient these days to blame the media for this deluge of negative information. Indeed, some have virtually made a sport of blaming the media – for pretty much everything.  Scientists believe, however, that the problem is much deeper than the 24/7 assault on our senses from media outlets. We tend to forget that we have a lot in common with dogs, raccoons, pigs, etc. – just as they are beings of instincts, so are we. Our ancestors who exhibited traits of pessimism and caution tended to live longer by virtue of hypervigilance; they were less likely to be bitten, eaten or to fall, hence more likely to live long enough to pass their traits to children.  Scientists suggest that this process created a greater tendency in human kind to expect the worst and be relieved when it does not occur. This tendency, consequently, is an artifact inherent from our days as both predator and prey, a natural predisposition that hinders our ability to be fully objective when we consider the reality of the human condition. We consider ourselves (naively) to be enlightened, yet those instincts apparently still roam within our being. In part based upon this instinctual foundation, scientists have noted that the modern American is far more likely to be drawn to the negative, the nasty and the dramatic in the media than a positive story.


This greater societal phenomenon has plainly not sidestepped the realm of police work. Indeed, it appears that our native propensity is most vigorously spurred within the public perception of policing. The question is, why the apparent heightened enthusiasm toward the negative with regard to policing as opposed to other civil endeavors?


While I have not yet found any research to support the theory, it seems that part of this enhanced negativity toward policing stems from a greater societal awareness of underlying social justice inequity and a greater appreciation for lingering and deleterious effects of historic discrimination. As society becomes increasingly aware of continuing inequities there is a growing, well-founded perception that we must do more to balance the scales.  Society is plainly also feeling an increasing collective guilt overly these lingering issues. Guilt leads to a desire to make amends, to correct the harm.  The issues, however, are incredibly complicated, and like all complicated social issues, well-meaning people often shy away from the burden of frank, objective and difficult discussions and evaluations.  Instead, in a rush to remedy they often resort to another natural but highly problematic response – scapegoating. 


The flood of negative media tying law enforcement to perceived, ongoing social injustice acts as a catalyst for this guilt-based desire to cure; it can be easy to see law enforcement as the primary force in society’s ongoing inequity. As a result, an increasingly progressive population eager to escape its own guilt finds a ready scapegoat in law enforcement – and an easy means of avoiding the true complexity of the underlying problems. Combined with the human tendency to dwell in the negative, this call for greater social justice creates a perfect storm for negative attitudes about policing.



The reality, fortunately, is that things are not getting worse – far from it. While there is room to debate whether the astoundingly positive progress in virtually all measurable indexes of human wellness might not continue on its current upward trend, there is no doubt that humanity is dramatically better off today than it was 50, 100, or 200 years ago. In a July 28, 2017 article in The Guardian, “Is the World Really Better than Ever?” Oliver Burkeman provides an insightful and thought-provoking evaluation of the growing body of evidence that the plight of mankind is dramatically improving.  Burkeman notes, for example, that only in the last few years has the percentage of the world's population living in extreme poverty dropped to below 10%. Positive changes abound across the board – even global carbon emissions have not raised in three years. Indeed, Berkman notes that a newspaper could have had the headline "number of people in extreme property fell by 137,000 since yesterday," every day since 1992.  Even giant pandas have made a comeback and are no longer listed on as endangered. So why are we so glum?


Hans Rosling, now famous for his TED Talk presentations, has noted that our tendency toward negativity is not merely the result of ignorance; it is largely the result of preconception – perhaps the instinct of pessimism.  Rosling dramatically demonstrates just how successful mankind has been at improving the human condition over the last 50 years in a pair of TED Talks available on YouTube: “How not to be ignorant about the world,”, and “The best stats you’ve ever seen,”  In the former Rosling  provides, for example, dramatic evidence that – despite the common perception that women worldwide remain vastly behind men in the number of years of formal education – the reality is that women worldwide have very nearly caught up to men. He notes by further example that despite common perception that many more people are dying in natural disasters now than a hundred years ago, the reality is that a mere fraction are. In the latter talk, Rosling provides UN data that shows that infant mortality, life expectancy, and wealth equity have all dramatically improved globally since the 1950s. While this information should not be used to suggest that all is right in the world, it should provide us at least passing optimism.  Perhaps mankind might actually find a way to live up to its potential – and to its moral obligations.  Unfortunately, blaring negativity and human predisposition keeps us down.


In a similar vein, statistics on police/public interactions show general improvement. The national trend over the past several decades has been toward a decrease in the percentage of times police use force when compared to all police contacts with citizens. Some specific statistics are quite dramatic: the number of police officer involved shootings in New York City, for example, fell by two thirds between 1992 and 2014, from 332 down to 105.  As described by Steven Malanga, summarizing Bureau of Justice Statistics in “What the Numbers Say on Police Use of Force” in City Journal (Dec. 4, 2014), the numbers are falling consistently across virtually all categories.  In 1996, for example, Justice Department researchers estimated that 45 million Americans had some sort of contact with law enforcement, or about 21% of the population aged 16 and older.  By 2011, the total number of contacts between civilians and law enforcement dropped to approximately 40 million, or 17% of the 16-and-older population. Statistics also reported a significant decline in the number of individuals who reported that the police used force in their contacts, from 664,000 in 2002 to 574,000 in 2010 – a decline of almost 15%. Significantly, the declines were consistent regardless of race. Reports by African-Americans of police use of force fell from 173,000 in 2002 to 130,000 in 2010, a decline of nearly 25% (whites reported a decline from 374,000 to 347,000, or about 8%).  The statistics showed similar declines within prison populations, where the average mortality per 100,000 prisoners decreased to 128 in 2012 from 151 in 2000 (African-American mortality dropped from 127 to 109 in the same timeframe, a 14% drop).


The bottom line is that just as many people are mistaken in their belief that the human condition overall is worsening, so too are they mistaken in believing that there has been a recent surge in so-called "police brutality." The reality is on a statistical basis individuals are less likely to have any contact with police today than they were 30 years ago, and rather dramatically less likely to have police use force in those encounters.


As noted, however, law enforcement seems to be particularly vulnerable to the maelstrom of instinctive predisposition and negative media coverage. While I do not know the statistics on it, I would bet that the ratio of negative to positive stories involving the police is substantially worse than the general 17 to 1 ratio. I once inquired of a long-established Seattle newspaper reporter why he spent so much time criticizing police and so little time praising them.  His response?  "Ted, it isn't news when the police do their job correctly, it’s only news when they do not." Left in its current guise, this reality would seem to foreshadow a continuing decrease in public confidence in the validity and propriety of police behavior, in contradiction of the real circumstances.


The challenge for law enforcement is how to encourage people to recognize the continuing improvements within citizen/police interactions as a catalyst to opening a broader conversation on the complexities of the underlying problems.  Police must find a way to get people to understand the overwhelmingly positive role they play in the safety and security of their communities; the sooner police can minimize their role as scapegoats, the sooner a serious conversation on the issues and potential solutions can begin.


Many in the LE community are pessimistic that the perception can change.  We have a real potential to staunch the bleeding, however. The reality is that police chiefs and sheriffs across the nation have tremendous public relations power from the bully pulpit; if they call a press conference to discuss a serious event in their community, significant statistical improvements, or any number of other positive potential police involved issues, the media will come; a story will be printed or broadcast. For reasons that are unclear, however, it appears that the great majority of chiefs and sheriffs are completely reluctant to mount the bully pulpit. In some instances it may be because they get terrific pressure from other branches of government to remain silent; elected leaders, after all, can and do gain political capital from leveraging the social injustice swell that is capturing our urban cores.  Piling on police criticism provides an easy connection to many progressive voters, and it cuts against that narrative if police chiefs educate their constituents on the real improvements in the citizen/law-enforcement relationship. This reluctance also almost certainly stems from the law enforcement institutional history of silence in the public realm. 


Notwithstanding what condition actually drives the apparent reluctance to educate their constituents, it behooves all of us with an interest in high quality law-enforcement and civil and social justice to continue to encourage our law enforcement leaders to speak out. A good public information officer is invaluable to a department's relationship with its constituents, but it is the chief or the sheriff that carries the real influence. Many of our fellow citizens simply want to hear the counter-narrative to the criticism and embellishments that typically dominate both the mainstream and social media channels. That counter-narrative should plainly and objectively accept the need for greater equity while emphasizing the incredibly important role that law enforcement plays in the safety and security of our greater society, the limitations of policing, and the improvements realized year after year.  We do our law enforcement officers a grave disservice by not providing that honest counter-narrative. The need is urgent; the anti-police narrative is rapidly gaining momentum and may become an un-remediable fact if not soon confronted.


The thoughts expressed above are the author's alone (who else would claim them?!), are at least potentially half-baked, and founded upon the thinnest of research. If I were you, I would not cite this in any authoritative undertaking. It is my hope that it simply encourages a thoughtful consideration of the need to change the dynamic of the conversation and possibly open the door to a more objectively sensible path forward.


If we are to continue the upward momentum of improvement in the human condition that is so readily apparent in the statistics, we must find a way to dialogue with respect and objectivity – including in the realm of policing.



November 2017

Submitted by: Casey C. Stansbury


Public Entities Beware: Ransomware on the Rise


My partner, cybersecurity guru Barry Miller, recently wrote an article about the risks of ransomware attacks. I would like to share some of that information with you and tailor it to address the exposure faced by public entities.


By now nearly everyone has heard about the "WannaCry" cyberattack which was first reported on May 12, 2017 and affected more than 300,000 computers by the end of that month. This is just the latest example of cybercriminals infiltrating the computers of unsuspecting victims. But did you know city governments and other local agencies are being commonly targeted in these attacks? This is due to the sensitive information these entities often hold and because of the critical nature of the services they provide. Even if you are not the least bit tech savvy, it is important to have a basic understanding of what ransomware is in order to protect yourself and to properly advise your governmental clients.


First, an example pulled from the headlines. In January of 2017, all government offices in Licking County, Ohio (1,000 computers and a dozen servers) were shut down for nearly two weeks while the county determined whether it would pay the $31,000 ransom hackers demanded. The county ultimately decided its backups were sufficient to rebuild its electronic records, which it did at the cost of more than $50,000 ($25,000 of which the county paid as a deductible on its cyber insurance policy).


So what is ransomware? It is a program loaded on victims’ computers via a phishing email, or by exploiting vulnerabilities in the computer’s operating system. Once loaded and executed, the ransomware encodes files on the affected computer, locking them from use. The data can only be made readable again by using the correct decryption key. The ransomware will also try to propagate itself onto networks to which an affected computer connects.


Because of budget constraints, local governments (especially smaller ones) may depend on legacy computer systems which are more susceptible to all types of cyber attacks, including ransomware. For example, the WannaCry Ransomware was built to take advantage of a vulnerability in older Windows operating systems, and local governments made for a prime target.


So how does ransomware work? It is most commonly distributed by emails that try to induce readers to click on a link. The type of deceit often depends on the season. Emails from purported shipping companies or retailers will often hit during the Christmas holidays. Others claiming to be from the Internal Revenue Service or accountants are prevalent in the weeks before April 15.


A user who clicks on a link or opens an attachment from one of these emails causes the download of an exploit kit, which installs ransomware on the affected computer. Once that installation is complete, the user is presented with a screen showing ominous information, which effectively is the ransom note. This screen will likely demand payment for a decryption key, which will allow the user to regain access to their system. There is typically a "countdown clock" telling the victim that the demand will double (or worse) once the countdown expires. The demand usually requires that the ransom be paid in Bitcoin, which is an untraceable digital currency that is not banked by any government or central bank.


Bitcoin was created by an anonymous Internet user in 2009. This "cryptocurrency" can be used to purchase a variety of goods online, and the number of merchants accepting Bitcoin increases by the day. Notably, Bitcoin can also be transferred from one person to the next anonymously. Owners keep Bitcoin in a digital wallet. They can spend them online, or they can trade their Bitcoins on exchanges. All Bitcoin transactions are recorded in a "blockchain," which is an online ledger that verifies each transaction's validity. Some collectors are simply holding Bitcoin, hoping the value of this cryptocurrency increases over time.


The ability to transfer Bitcoins anonymously has led to it being the currency of choice for cybercriminals, and more specifically, for ransomware hackers. Cybercriminals need not worry about the payment being traced back to them due to its anonymous nature. Additionally, payments between citizens of different countries is simplified because Bitcoins are not tied to any country's currency. Currently, Bitcoins are also effectively unregulated, meaning we are in the Wild West phase of Bitcoin's existence.


Ransomware programs generally are written by overseas criminal enterprises, most often Russian and Eastern European. Those enterprises sell software kits to would-be extortionists, sometimes for a nominal amount, but usually for a price that includes a percentage of the ransom the buyer is able to harvest. The buyers of the software are responsible for its distribution. The enterprises who sell the software compete on features, and even on “customer service” they provide to the victims who download their product. (Some versions of ransomware may even offer a reduced ransom to victims who leave a positive review of their experience.)


In a strange way, the success of ransomware is built on trust—the victims’ belief that if they pay the ransom, they actually will receive a key that will decrypt their files and allow the victims to regain access to their data. Because the typical ransom demand is relatively small, the distributors are relying on receiving many such payments, which will not happen if it becomes known that they do not deliver what they promise upon payment.


But there is no guarantee that if you pay the ransom you will regain access to your data. The perpetrators of WannaCry have been unable to distribute decryption keys fast enough to meet demand. Other ransomware hackers simply never have any intention of returning the data. Even if they do, however, there is no guarantee the data will be accurate. Additionally, there is no guarantee that, even if they return your data, hackers won’t build a back door into your computer network. So paying ransom is not without risk.


How can I protect against ransomware?


Ransomware is most often introduced into a computer or network via e-mail, when a user clicks on a link or opens a document that causes the computer to download malware. But WannaCry illustrates that defending against ransomware attacks is not a matter of adopting a single strategy.  While it can be initiated through an email, once within a network it attacks connected machines without requiring users to open attachments or click links.


Successfully dealing with ransomware requires implementation of the following strategies:


Education.  Teach computer users to be very wary of e-mails containing links and attachments. E-mails claiming that the reader may be the beneficiary from the death of an overseas prince are no longer the concern; today’s phishing emails are more sophisticated and are designed to reach users at times when they may be most susceptible to clicking on a link, such as the Christmas shipping e-mail. Users must be constantly vigilant, and should never click a link or open an attachment if there is the slightest doubt about where the email came from.


Keep computer software up to date.  WannaCry attacked a vulnerability in Microsoft’s Windows operating systems. Microsoft distributed a patch aimed at closing this vulnerability in March of 2017. The worm did not affect users who installed the patch. Microsoft has been criticized for its initial response to users of older Windows versions. Although it eventually distributed free patches to these users (Microsoft normally charges for the support of older versions of its software), that move came too late for some to protect themselves against WannaCry. Updating from older versions of software, and timely applying patches (or setting up automatic patching) will help protect against similar attacks.


Test your systems.  Cities can check the status of their systems and try to find (and remedy) vulnerabilities before hackers exploit them. Commercial vendors offer “penetration testing,” where the vendor tries to infiltrate a computer network just as a hacker would. The vendor then works with the "target" to resolve issues before they become real problems.


Segment networks.  Not all parts of a network need to be in communication with each other at all times. Ransomware or other invasive malware cannot spread to other parts of a network if there is no communication between them. Instruct your IT department or vendor to employ network segmentation.


Backup data.  The ability of a ransomware victim to avoid paying ransom depends on how well the victim’s computer systems are backed up. Data backups and off site data storage can be critical in restoring systems without paying ransom. Off site backups may take longer but should be a part of a disaster response strategy should a city’s on site backups be lost or destroyed.


Share risk by insuring against cyber attacks.  Traditional insurance products, such as a Commercial General Liability Policy, or a Public Officials Liability Policy, generally do not cover cyber-related issues such as ransomware attacks. However, insurers now offer cyber insurance products. Whether the victim of a ransomware attack chooses to pay the ransom or to restore data, costs are associated with either choice. The right cyber insurance policy can pay or defray those costs and offer other resources for getting the insured back to full efficiency.


Public entities are well-served to educate themselves about the rising trend of ransomware. With an understanding of the basics, you can position yourself to advise your governmental clients on this important topic.



October 2017


Welcome to the Section – Chair Kay Hodge

Dear Member of Section on Civil Rights and Public Entity Liability:


I want to thank Scott Kreamer for the opportunity and privilege to serve as chair of the FDCC Civil Rights and Public Entity Liability Section.  I will be working with the Section’s Vice Chairs Ted Buck, LaShawnda Jackson, Robert Lockwood, Jane Lynch, Tom Miller and Casey Stansbury and look forward to getting to know you.  As we begin this year, please join me in extending a very big thank you to David Fuqua, our immediate past chair. 


Your membership in the Section provides you with an opportunity to showcase your talents to others.  Through our monthly Newsletters, we want to make sure that others learn of your recent victories and triumphs so please let me know about them and I will make sure that the Vice Chair responsible for that month’s newsletter submission includes it.  We also encourage you to send us a case note/blurb on a recent case of note, new statute or trend that you think will be of interest to other members of the Section.  For those who are more ambitious, we would be delighted to receive your original article for publication in Insight and/or we are always looking for program ideas and speakers for upcoming programs.  At this point, we are working on the Annual meeting in Hawaii, and will be moving on to the Winter meeting soon.


In addition, if you know of anyone who would be a good candidate for membership in the FDCC, please let me know.  The Section is being asked to nominate at least 4 new members (2 from industry/corporate counsel).  The criteria for membership is outlined on the website under the Admissions. 


Please let me know if you would be interested and willing to help us in any of these areas or have a member to nominate.  Please send me an email at or call me at 617-542-6789.


A Quick Summary of Some Recent Immunity Decisions in the Eleventh Circuit – Robert Lockwood


I always appreciate when somebody else gives me some free research.  So, in preparation for this month’s newsletter, I pulled some recent Eleventh Circuit cases dealing with immunity.  Hopefully, you can use them in your practice.


Salter v. Mitchell, No. 16-14703, 2017 WL 4457137 (11th Cir. Oct. 5, 2017).  A jail administrator and officers were not deliberately indifferent to the risks of a prisoner’s suicide.  “[T]hey based their actions on an experienced physician’s recommendation to move [the prisoner] from ‘suicide watch’ to the

‘health watch’ unit ….”  Plaintiff tried to argue that the jail defendants should not have relied upon the doctor because he was a general practitioner and not a mental health specialist.


Shew v. Horvath, No. 17-12023, 2017 WL 4417592 (11th Cir. Oct. 4, 2017).  Rickey and Frances had a sinkhole under their house, and got $240,000 from their insurance company for damages caused by the sinkhole.  They never repaired any structural issues, and failed to disclose the sinkhole when they signed a contract to later sell the house.  The potential purchaser found out about the sinkhole, backed out and filed a criminal complaint.  Detective Horvath investigated and arrested Rickey and Frances for mortgage fraud. When the D.A. later dismissed the case, Rickey and Frances filed a Fourth Amendment search and seizure claim. The Eleventh Circuit went beyond the “arguable probable cause” analysis and found that “Horvath’s communications with interested parties and review of relevant documents gave him probable cause to believe [Rickey and Frances] had committed mortgage fraud.”


Jones v. Walsh, No. 17-11318, 2017 WL 4329716 (11th Cir. Sep. 29, 2017).  Venus Jones called 911 and reported that her neighbors threatened the Jones family and brandished a gun.  During the call, the dispatcher heard a gunshot and informed officers.  When officers arrived, they interviewed the neighbor, who said that Jones threatened them, pulled a gun and had four guns in the home.  Officers drew their weapons and ordered Jones and three children out of the Jones house.  Jones and two of her children were handcuffed and required to lie on the lawn for no more than seven minutes.  The Court granted qualified immunity on Jones’s Fourth and Fourteenth Amendment claims.  “The imminent danger posed by an unknown number of suspects and weapons made it reasonable for officers to order [the Joneses] to exit their home and to handcuff them.”  Moreover, “the officers’ decision to display their weapons to the Joneses was a reasonable response to ‘the exigencies of the immediate situation.’”


Dang v. Sheriff, Seminole County, No. 15-14842, No. 4230552 (11th Cir. Sep. 25, 2017).  Dang was a pretrial detainee in the Seminole County Jail.  From January 26, 2012 to February 22, 2012, Dang was seen eight times by jail medical personnel and complained of neck pain and headaches.  Jail personnel failed to diagnose Dang with meningitis until February 22.  In a fact-intensive analysis, the Court found that none of the medical personnel were deliberately indifferent.


Ransom v. Sherman, No. 16,17443, 2017 WL 3887981 (11th Cir. Sep. 6, 2017).  Alabama law enforcement officers have arguable probable cause to arrest somebody who shouts at them in the course of arresting a third person.  Justin Ransom fled a DUI checkpoint and ran to the front yard of his parents’ home.  Sharon Ransom came out on her porch and began shouting at the officers arresting her son.  They instructed her to go inside, but when she continued to shout at them, Deputy Richard Sherman arrested her.  Ransom sued for wrongful arrest and excessive force.  The Court found that Sherman had arguable probable cause to arrest Ransom, because Alabama Code Section 13A-10-41(a) prohibits “prevent[ing] or attempt[ing] to prevent a peach officer from affecting a lawful arrest of himself or another person.”


A Little Something for the Alabama Members of the Section – Robert Lockwood


Two weeks ago, the Alabama Supreme Court held that a firefighter conducting a routine patrol in a fire vehicle is not entitled to state-agent immunity if he gets into a car wreck.  Ex parte Venter, No. 1160539, 2017 WL 4215183 (Ala. Sep. 22, 2017).  The Court found that the firefighter was not “formulating plans and policies on behalf of the fire department” or engaged in any other function that would entitle him to immunity.  Instead, his activities “can be characterized only as a routine action requiring the exercise of due care.”  When I first read Venter, I thought it was a substantial restriction on state-agent immunity.  But, there are at least two other cases where Alabama’s appellate courts have found that driving a car is not a function worthy of immunity.  See Evans v. Cotton, 770 So.2d 620 (Ala. Civ. App. 2000)(finding that driving a van is a ministerial task and not a discretionary function); Town of Loxley v. Coleman, 720 So.2d 907 (Ala. 1998)(trying to avoid potholes is a ministerial function and not a discretionary duty).





The Types of Federal Civil Claims that can Arise when Police Officers use Force on Mentally Ill or Mentally Disabled Individuals.

By:  Robert C. Lockwood, Esquire

Wilmer & Lee, P.A.

Huntsville, AL


This article is a portion of a presentation that was made at the Annual Meeting of the Federation of Defense and Corporate Counsel.  The complete presentation focused upon:  (1) law enforcement training programs which addressed the difficult issues that can arise from interactions between police and the mentally ill; (2) the types of claims that arise from such actions; and, (3) strategies for attorneys defending those claims.  FDCC members Kay Hodge and Jeff Lowe provided excellent discussions on those issues.


In preparation for the presentation, a quick Google search revealed a substantial number of news stories in a short period of time dealing with the use of force by law enforcement against the mentally ill:      

  • The Life of Jairon Brown: a Promising Future Beset by Mental Illness, Ended by Police Shooting, The Times-Picayune, April 24, 2017.
  •  Police: Man Killed in Shoot-out Had History of Mental Health Issues, The York Daily Record, April 25, 2017.
  •  Mother of Mentally Ill Man Fatally Shot by Boston Police Demands Justice, The Boston Globe, April 22, 2017.

One of the most-publicized cases involving interaction between mental illness and law enforcement is the Alan Pean case from Houston, Texas.  It was the subject of a New York Times Article (When the Hospital Fires the Bullet, New York Times, February 12, 2106) and an episode of the This American Life Podcast (My Damn Mind, This American Life, February 12, 2016).  In short, two off-duty Houston police officers worked as security guards at a hospital.  In the course of attempting to subdue Mr. Pean, who suffers from bipolar disorder, they shocked him with a tazer, shot him once and handcuffed him.  Mr. Pean filed suit in June 2016, and that case remains pending.


When mentally ill individuals are subjected to force at the hands of government actors, they (or their surviving family members) frequently take legal action.  A non-scientific review of case law demonstrates that the overwhelming majority of these cases wind up in federal court.  Certainly, plaintiffs frequently assert state law claims such as negligence, wantonness, assault, and intentional infliction of emotional distress.  But, plaintiffs invariably assert a claim for constitutional violations under 42 U.S.C. § 1983, disability discrimination under the Americans with Disabilities Act, or both statutes.  Presumably, those claims are asserted so frequently because of the ability to obtain attorneys’ fees, which are unavailable in many state law tort claims.  This article focuses on those federal claims.

  42 U.S.C. § 1983

A.  Fourth Amendment Excessive Force

The Fourth Amendment to the United States Constitution provides citizens with the right to be free from

unreasonable searches and seizures, which includes “the right to be free from the use of excessive force in the course of arrest.”  Saunders v. Duke, 766 F.3d 1262, 1266-67 (11th Cir. 2014).  As a result, most cases arising from the interaction of law enforcement and the mentally ill focus upon Fourth Amendment excessive force allegations.1

The use of force is evaluated under an objective reasonableness standard based upon the perspective of a reasonable officer on the scene.  Graham v. Conner, 490 U.S. 386, 396-97 (1989).  “Excessive force claims are necessarily fact-intensive; whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’ ” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)(quoting Graham, 490 U.S. at 396).  In Graham, the Supreme Court set out three factors to consider in determining the reasonableness of force: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and, (3) and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396.


B.  Does a Plaintiff’s Mental Illness Change the Analysis?

Should a plaintiff with mental illness be treated differently from a “legitimate” criminal? In short, does the

use-of-force analysis change when the plaintiff suffers from diminished capacity?  At the same time, should we require police officers to be sidewalk-psychiatrists responsible for analyzing a perpetrator’s mental state?

Arguments can certainly be made both ways.  Nevertheless, there is a line of cases in which a plaintiff’s mental illness impacted the use-of-force analysis.   The Ninth Circuit Court of Appeals wants to have its cake and eat it too:

This Court has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.” ... The Court has, however, “found that even when an emotionally disturbed individual is acting out and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted ... with a mentally ill individual.”


Hughes v. Kisela, 841 F.3d 1081, 1086 (9th Cir. 2016).  The Seventh Circuit is more straightforward:


There is a commonsense need to mitigate force when apprehending a non-resisting suspect, particularly when the suspect is known to have diminished capacity. An arrestee may be physically unable to comply with police commands. See Smith, 295 F.3d at 770; see also Cyrus, 624 F.3d at 863 (noting that officer was “aware of [arrestee's] mental illness”); McAllister, 615 F.3d at 883 (finding knowledge of arrestee's diabetic condition relevant to excessive force analysis); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.2004), (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”).


Phillips v. Community Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2012).  Even the Fifth Circuit (no bastion of liberalism) has quoted the Ninth Circuit approvingly: “Although we have not had the occasion to consider qualified immunity in the context of the police killing a mentally ill individual, we note that the Ninth Circuit has held ‘the governmental interest in using [deadly] force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.”  Meadours v. Ermel, 483 F.3d 417, 423 n.5 (5th Cir. 2007).

                      Of the foregoing cases, the Ninth Circuit’s Hughes opinion comes the closest to requiring sidewalk psychoanalysis.  In that case, police responded to a “check welfare” call regarding a woman reportedly hacking a tree with a large knife.  Hughes, 841 F.3d at 1084.  Upon arrival, they found the woman acting erratically, and ordered her to drop the knife.  The woman ignored those commands and walked towards another, nearby, unarmed woman.  A police officer shot her four times.  In the course of finding the use of force excessive, the Court found that “there were sufficient indications of mental illness to diminish the governmental interest in using deadly force.”  Id. at 1086.


                      While mental illness can be taken into account, it cannot be used as an excuse for potentially deadly behavior.  For example, in Hassan v. City of Minneapolis, 489 F.3d 914 (8th Cir. 2007), police officers approached a man walking down the middle of the street with a machete and a tire iron.  As the man walked towards pedestrians, the officers used a taser twice, which was ineffective.  The man began to chase the officers with the machete and they tasered him again to no effect.  Ignoring multiple demands to drop the machete, the man advanced on the officers and hit a police car with the machete.  As he continued to advance waving the machete, the officers shot and killed him.  The representative for the estate argued that the use of force was unreasonable because the officers should have known that he was mentally ill, but that argument was rejected by the Eighth Circuit:


Hassan argues the officers should have known Jeilani's behavior indicated he was mentally ill, and thus, their conduct was unreasonable. However, even if Jeilani were mentally ill, Jeilani's mental state does not change the fact he posed a deadly threat to the officers and the public. “Knowledge of a person's disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual.” Sanders, 474 F.3d at 527 (citing Bates ex rel. Johns v. Chesterfield County, Va., 216 F.3d 367, 372 (4th Cir.2000)).


Hassan, 489 F.3d at 919.


           Courts generally recognize the difficulties faced by officers dealing with the mentally ill:


Police officers face tough judgment calls about what to do with the mentally ill. Arrestees do not normally arrive at jail toting their medical records. Psychiatric problems do not always manifest themselves with clarity. And not even clear psychiatric problems always reveal their potential for serious harm—as here a heart attack. Perhaps those truths counsel in favor of more policies and training designed to minimize tragic injuries and deaths like Omar's. And perhaps police would be wise to err on the side of calling a doctor in cases like this one. But the United States Constitution and Ohio law do not elevate any deviation from wise policy into a cognizable lawsuit for money damages against the City or the relevant law enforcement officers.


Arrington-Bey v. City of Bedford Heights, No. 16-3317, 2017 WL 729730 at *5 (6th Cir. Feb. 24, 2017).             


C.  Qualified Immunity


                       The United States Supreme Court’s most-recent decision on qualified immunity demonstrates the hesitancy of the federal courts to second-guess split-second decisions of law enforcement officers.  See White v. Pauly, 137 S.Ct. 548 (2017).  White did not involve a mentally-ill plaintiff.  Nevertheless, it discussed the qualified immunity “of an officer who – having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by the officers – shoots and kills an armed occupant of the house without first giving a warning.”  White, 137 S.Ct. at 549.  The facts indicated that earlier-arriving officers failed to properly identify themselves and warn the victim.  Nevertheless, those alleged errors could not deprive the later-arriving officer of qualified immunity: “No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.”  Id. at 552.


                         In the vast majority of cases reviewed in preparation for this article, individual law enforcement officers prevailed in their assertions of qualified immunity.  Probably, this is because qualified immunity poses a substantial challenge to most plaintiffs.  Indeed, qualified immunity “protects all but the plainly incompetent and those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335, 341 (1986).   The familiar analysis for qualified immunity requires a plaintiff to prove: (1) a violation of constitutional rights; and, (2) that the right violated was “clearly established.”  Given the substantial obstacles for overcoming qualified immunity, instead of focusing on “wins” for law enforcement, this presentation will focus on circumstances in which courts have denied summary judgment.


                        It appears that the most-frequent basis for denial of qualified immunity is the existence of conflicting facts.  For example, the Fifth Circuit affirmed a denial of summary judgment fairly summarily in Meadours v. Ermel, 483 F.3d 417 (5th Cir. 2007).  In that case, Bob Meadours’ sister called 911 and “made it clear she was seeking mental health assistance for her brother and not reporting a crime.”  Meadours, 483 F3d at 419.  Officers shot Mr. Meadours at least twice with beanbag rounds before he climbed on top of a doghouse, and then advanced on the officers with a screwdriver.  The officers then shot and killed Mr. Meadours.  The Court found that fact issues prevented a legal determination on the question of reasonableness of force: “for example, whether Meadours was first shot while charging at Officer Kominek, or while he was still atop the doghouse, posing no imminent threat.”  Id. at 432.  “The question of when and where Meadours was shot is integral to determining whether the officers’ actions were reasonable, and, consequently we conclude that the dispute is material.”  Id.


                        In Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016), James Barnes attended a baptism in the ocean, and while in the water, began flailing, flopping, thrusting his arms and body and yelling loudly about a demon.  The facts thereafter are extremely detailed.  Barnes initially engaged in a struggle with an Officer Tactuk in the water.  Tactuk ultimately handcuffed Barnes in an unorthodox manner with one arm pulled over his head.  He called for assistance and stated that he had a violent, mentally-ill person in custody.  Barnes continued to resist and Tactuk shot pepper spray in his eyes and struck him in the face multiple times.  Office Kenneth Kubler responded and helped to subdue Barnes.  In the course of doing so, Kubler used his taser five times.  Barnes died from complications of asphyxia with contributory conditions of blunt trauma and restraint.  The Eleventh Circuit affirmed the denial of qualified immunity for Officer Kubler on the grounds that “gratuitous use of force when a criminal suspect is not resisting constitutes excessive force.”  Wate, 839 F.3d at 1021.  Here are the facts relied upon by the Court to support that conclusion:

Construing the evidence in favor of Plaintiff, the unambiguous facts are that Barnes was no longer resisting at least after the first two tasings, and that Kubler's further use of the Taser was wholly unnecessary, and grossly disproportionate to the circumstances. Kubler had arrived on the scene six and a half minutes earlier, found Barnes bleeding from the face and observed Tactuk striking Barnes multiple times. The two officers immobilized Barnes face down on the sand. Barnes had no weapon and was awkwardly handcuffed, which, drawing inferences from the facts in a light favorable to Plaintiff, had a greater than normal effect of further neutralizing Barnes. The record establishes that while the first or maybe even the second Taser deployment may have been warranted, there is competent unambiguous evidence that by the third tasing, Barnes was handcuffed, immobile and still, such that a reasonable officer in Kubler's position would conclude that Barnes did not present a risk of flight, or a threat of danger to the officers or to the public. Under these circumstances, further shocks were unnecessary and grossly disproportionate, and a jury could find that Kubler's use of a Taser on Barnes five times was unreasonable force.


 Id.  The Court further found that Barnes’s right was clearly established because “[a] reasonable officer in Kubler’s position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ceased resisting, was unconstitutionally excessive.”  Id.


                      Another interesting case dealing with excessive force is Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015).  In that case, Christopher Weiland’s father made a “Baker Act” call to police, and informed the deputies that his son was bipolar, “acting up,” “on drugs,” and “probably had a gun.”  The complaint alleged:

Fleming and Johnson, guns drawn, approached the bedroom without calling out or identifying themselves. The deputies “came upon [Weiland] sitting on the edge of a bed looking down at a shotgun that lay loosely in his lap.” Suddenly and without warning, Johnson fired two rounds at Weiland, knocking him off the bed.  As Weiland lay on the floor bleeding and critically injured, Fleming tasered him. Then both Johnson and Fleming “physically beat and assault[ed] [Weiland] before finally handcuffing one of his hands to a dresser.” At no point did Weiland raise the shotgun from his lap or point it at the deputies.

Weiland, 792 F.3d at 1317.  Weiland is not a qualified immunity case.  Instead, the trial court dismissed based upon a failure to state a claim upon which relied can be granted.  A large part of the Weiland opinion chastises the plaintiff for shotgun pleading, and it appears that poor pleading was probably the underlying reason for dismissal.  Nevertheless, the Eleventh Circuit reversed dismissal, finding that the complaint asserted sufficient facts to state a claim for excessive force.

In Hobart v. Estrada, 582 Fed. App’x 348 (5th Cir. 2014), the Fifth Circuit reversed a summary judgment

based on qualified immunity where a mentally ill teenager was killed after his parents sought assistance in transporting him to the hospital.  In Hobart, Officer Jesus Estrada arrived at the scene before the Houston Crisis Intervention Team – which is trained on mental illness and tactics to verbally de-escalate situations involving persons with serious mental illness.  Rather than waiting for the CIT, Officer Estrada entered the house and spoke with the mother.  The trial court denied summary judgment on the basis of qualified immunity and the Fifth Circuit affirmed, based upon the mother’s version of the facts:

Accordingly, if a jury were to credit Mrs. Hobart's testimony, it could reasonably conclude that Officer Estrada faced only minor physical contact from Aaron, and that such contact ended and the two men were separated for multiple seconds prior to Officer Estrada pulling out his gun and shooting Aaron approximately six times. Under that factual scenario, Officer Estrada would lack probable cause to believe that Aaron posed a significant threat of death or serious physical injury to Officer Estrada or to others, and shooting Aaron in the manner that he did would be clearly excessive and unreasonable.

Hobart, 582 Fed. Ap’x at 355.  The Court further rejected an argument regarding Estrada’s subjective mental state: “As the district court noted, regardless of whether an officer’s mental state caused him to panic such that he unreasonably determined that a threat was present, that would not render his determination reasonable.”  Id.

                      The Sixth Circuit focused on the fact-intensive nature of the excessive force analysis in affirming denial of qualified immunity in Hanson v. City of Fairview Park, 349 Fed. Ap’x 70 (6th Cir. 2009).  In that case, Scott Hanson had a history of mental illness and stopped taking his medications.  Police officers responded to a complaint that Hanson was “out of control” and “trashing his house.”  Officer John Brewer found a car driven through the garage door and observed Hanson in his garage “walking back and forth like he’s agitated,” and with two golf clubs “beating something like a workbench.”  Brewer claimed that he called out to Hanson, who “charged” toward him, walking “briskly” with two golf clubs in his hands.  Brewer claimed that Hanson raised the golf clubs above his head and said: “I’m coming for you.”  Brewer claimed that he was unable to retreat because of the crashed car.  So, he fired his weapon and killed Hanson.  But, witnesses disputed whether Hanson raised the golf clubs The trial court denied summary judgment, finding fact issues of “whether Mr. Hanson had anything in his hands, whether Mr. Hanson was advancing when he was shot, and whether Officer Brewer was penned in by the PT Cruiser ....”  Hanson, 349 Fed. Ap’x at 73.  The Sixth Circuit agreed with that analysis:

While we agree that Officer Brewer's conduct was reasonable if the deceased was threatening Officer Brewer with raised golf clubs, if the deceased was threatening him but had lowered the clubs, the justification given by the officer may be no longer available. The reasonableness of defendant's conduct would then be a different question, and we do not have defendant's testimony to support the assertion that, given that factual scenario, shooting the decedent would be a reasonable response. If the deceased had no weapon in his hand, the immediate threat would be less and some lesser use of force might have been reasonable.

Id. at 76.

                     In Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), the court focused on fact issues regarding an officer’s conduct immediately prior to the use of force.  Lieutenant Donald Smith responded to a call that Terry Allen was sitting in his car threatening suicide.  When he arrived, Mr. Allen was sitting in the driver’s seat with one foot out of the vehicle and a gun in his right hand on the console between seats.  Lt. Smith repeatedly told Allen to drop the gun.  He then tried to reach into the car and grab the gun while an Officer Bentley held Allen’s left arm and an Officer Farmer attempted to enter the car on the passenger side.  Mr. Allen reacted by pointing the gun at the officers.  Shots were exchanged and Allen was killed.  In considering the reasonableness of force, the Tenth Circuit will consider the “officer’s conduct prior to the suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.”  Allen, 119 F.3d at 840.  Without explicitly saying so, the Tenth Circuit essentially found that an officer’s use of force might not be reasonable if the officer provoked the victim’s threat of force.  In the Allen case, there was evidence that Lt. Smith “ran ‘screaming up to Mr. Allen’s car and immediately began shouting at Mr. Allen to get out of his car....” Id. at 841.  Because of those facts, the Tenth Circuit reversed summary judgment on qualified immunity: “Clearly, the officers’ preceding actions were so ‘immediately connected’ to Mr. Allen’s threat of force that they should be included in the reasonableness inquiry.  The differences in eyewitness testimony regarding the officers’ approach are therefore material factual disputes.”  Id.

                    Our newest Supreme Court Justice participated in a decision from the Tenth Circuit Court of Appeals last year.  Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016).  In that case, Officers David Baca and Andrew Jarmillo were called to perform a “welfare check” on Jerry Perea, because his mother stated that he was on “very bad drugs” and she was afraid of what he might do.  The officers located Perea on his bicycle, and Officer Jaramillo pushed Perea off the bicycle.  They did not tell Perea why they were following him or why he was being seized, and they never asked Perea to halt or stop.  Perea struggled and Jaramillo ultimately tasered him ten times in less than two minutes.  While waiting for an ambulance, Perea stopped breathing and died.  The Court found that the Graham factors weighed against a finding of objective reasonableness.  Because they were merely performing a welfare check and not looking for Perea as a criminal suspect, the first factor (severity of the crime) weighed “heavily against the use of anything more than minimal force.”  Perea, 817 F.3d at 1202.  “Repeated use of the taser exceeded the minimal force that would be proportional to Perea’s crime.”  Id. at 1203.  The second factor (immediacy of the threat to officers or others) weighed against the officer because Perea was not “a danger to anyone other than himself before they attempted to affect the arrest.”  Id.  The final factor, whether Perea resisted arrest, weighed in favor of some use of force, but the “relevant inquiry” was “whether the taser use was reasonable and proportionate given Perea’s resistance.”  Id.

Even if Perea initially posed a threat to the officer that justified tasering him, the justification disappeared when Perea was under the officers’ control.  It is not reasonable for an officer to repeatedly use a taser against a subdued arrestee they know to be mentally ill, whose crime is minor, and who poses no threat to the officers or others.

Id. at 1204.  After finding the use of force excessive, the Court quickly dispensed with the “clearly established” analysis:

It is – and was at the time of Perea’s death – clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force. .... More specifically, it is likewise clearly established that officers may not continue to use force against a suspect who is effectively subdued.


 D.        Municipal Liability for Failure to Train

                      Individual law enforcement officers are not the only parties at risk arising from a use of force against the mentally ill.  Plaintiffs also seek to hold municipalities liable for failure to adequately train officers on how to deal with the mentally ill.  Yet again, federal law makes it very difficult for failure to train claims to succeed.   The Supreme Court has recognized that a city’s culpability “is at its most tenuous where a claim turns on failure to train.”  Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011). The first hurdle to municipal liability is the underlying claim itself.  If the plaintiff cannot demonstrate a constitutional violation by law enforcement, he/she has no claim for failure to train.  “[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”  City of Canton v. Harris, 489 U.S. 378, 388 (1989)  “Deliberate indifference can be established in two ways: by showing a widespread pattern of similar constitutional violations by untrained employees or by showing that the need for training was so obvious that a municipality’s failure to train its employees would result in a constitutional violation.”  Mingo v. City of Mobile, 502 Fed. Appx. 793, 799-800 (11th Cir. 2014).


                      Plaintiffs can rarely provide sufficient evidence to meet the “deliberate indifference” standard.2   So, again, rather than focusing on municipal “wins,” which are voluminous, this article will review cases that were allowed to proceed against municipalities for failure to train.   In Allen v. Muskogee (discussed above), the Tenth Circuit not only denied qualified immunity, but also found sufficient evidence to require a trial on failure to train.  In that case, the Muskogee Police Department training coordinator testified that “officers acted in accordance with their training in approaching the car and trying to take away the gun.”  Allen, 119 F.3d at 843.  The plaintiff countered with expert testimony establishing that such training was “wrong and out of sync with the rest of the country in the police profession.”  Id.  Thus, the court concluded “[w]hen viewed in the light most favorable to the plaintiff, the record contains evidence that the officers were trained to act recklessly in a manner that created a high risk of death.  The evidence is sufficient to support an inference that the need for different training was so obvious and the inadequacy so likely to result in violation of constitutional rights that the policymakers of the City could reasonably be said to have been deliberately indifferent to the need.”  Id. at 844.

The case before us is within the “narrow range of circumstances” recognized by Canton and left intact by Brown, under which a single violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation. The likelihood that officers will frequently have to deal with armed emotionally upset persons, and the predictability that officers trained to leave cover, approach, and attempt to disarm such persons will provoke a violent response, could justify a finding that the City's failure to properly train its officers reflected deliberate indifference to the obvious consequence of the City's choice. The likelihood of a violent response to this type of police action also may support an inference of causation—that the City's indifference led directly to the very consequence that was so predictable.

Id. at 845.


                      In Olsen v. Layton Hills Mall, 312 F.3d 1304, 1310 (10th Cir. 2002), Carl Kipp Olsen was arrested and transported to the Davis County Jail.  He told prebooking officers that he suffered from Obsessive Compulsive Disorder (“OCD”) and required medication to prevent panic attacks.  The officers took his medication from him and insisted that he remove his shoes and socks.  Mr. Olsen “recoiled” at the request and suffered a panic attack after acceding to the demand.  The Davis County Jail did not provide any training for handling individuals with OCD.  The Tenth Circuit found that Olsen provided sufficient facts to support deliberate indifference – primarily because of the prevalence of that condition: “It hardly bears repeating, but OCD does not rival Halley’s comet in its infrequency of appearance.  OCD occurs in more than two percent of the population .... Although a jury shall decide exactly to what extent it has burst into the mainstream, one could hardly deem it an obscure disorder.”  Olsen, 312 F.3d at 1319.

Given the frequency of the disorder, Davis County's scant procedures on dealing with mental illness and the prebooking officers' apparent ignorance to his requests for medication, a violation of federal rights is quite possibly a “ ‘plainly obvious' consequence” of Davis County's failure to train its prebooking officers to address the symptoms. Barney,143 F.3d at 1307 (internal citations omitted). And this is for a jury to decide. That OCD is relatively common and that the county had procedures in place for dealing with inmates with psychiatric disorders suggest that the municipality may have had constructive notice of the illness' prevalence and consequences. Accordingly, Appellant has raised a genuine issue of material fact as to whether the county had notice of and was deliberately indifferent in its failure to train prebooking officers on OCD.

Olsen, 312 F.3d at 1320.


                      A final interesting case is Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).  In that case, officers received a complaint that a man was running around naked.  They found him on an exterior landing of an apartment building, jumping up and down, yelling and kicking his legs in the air.  The officers persuaded him to come down the steps, but when he tried to walk past them, a struggle ensued.  In restraining Cruz, the officers used a “hog tie” restraint.  Cruz later died, arguably as a result of his position on the ground while restrained.  The Tenth Circuit found that use of a “hog tie” restraint was unconstitutional when used against individuals with diminished capacity:

We do not reach the question whether all hog-tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual's diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. In such situations, an individual's condition mandates the use of less restrictive means for physical restraint.

Cruz, 239 F.3d at 1188.  The Court found that the individual officers were entitled to qualified immunity, because the right was not “clearly established.”  Nevertheless, the Court affirmed denial of summary judgment for the City of Laramie on a failure to train claim:


The court cited evidence that the City failed to train its officers on the use of hobble restraints and that the City put such restraints in its police cars. The court also noted that high ranking officials were aware of positional asphyxia attributable to hobble restraints and of a doctor's report stating that “deaths in police custody with hog-tie restraint[s] have been reported in medical literature a number of times.” The district court found that genuine issues of material fact were in dispute. The denial of summary judgment to the City therefore was appropriate.

Id. at 1191.

Americans with Disabilities Act


Because Section 1983 contains so many barriers to recovery, plaintiffs have sought relief through other

avenues of redress.  Most mental illnesses will probably rise to the level of a “disability” under the Americans with Disabilities Act.  Because the ADA is designed to eliminate discrimination against individuals with disabilities, many people who encounter force at the hands of law enforcement claim that they suffered impermissible discrimination.

A.    General Principles of the ADA


                      Title II of the Americans with Disabilities Act provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. § 12132.   The United States Department of Justice has issued regulations implementing Title II’s prohibition against discrimination. Those regulations provide that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).  Mentally ill individuals frequently claim that law enforcement officers should have made “reasonable modifications” to normal policies before implementing the use of force.  “Under the ADA[,] ... a discrimination claim based on an arrest situation usually arises in two different situations: (1) when police wrongfully arrest someone by mistaking his disability for criminal conduct, and (2) when police properly investigate and arrest someone with a disability for a crime unrelated to the disability and then fail to reasonably accommodate the disability in the course of the investigation or arrest.”  Joseph v. Bailum, No.16-cv-81176-BLOOM/Valle, 2017 WL 733393 at *6 (S.D. Fla. Feb. 24, 2017).    


B.        Does the ADA Apply to Encounters Between Law Enforcement and the Mentally Ill?


                    As an initial matter, it must be noted that the Fifth Circuit Court of Appeals takes the position that the ADA “does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life.”  Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).  It appears that the Fifth Circuit is the only appellate court to adopt this bright-line rule.  Instead, other courts seem to balance the totality of circumstances in determining if there has been a violation. See Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 175 (4thCir.2009) (“Just as the constraints of time figure in what is required of police under the Fourth Amendment, they bear on what is reasonable under the ADA.”); Bircoll v. Miami–Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)(“The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance.”); Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir.1999) (rejecting “a broad rule categorically excluding arrests from the scope of Title II ....”).


 C.        Failure To Train Law Enforcement on Interacting with the Mentally Ill.


                     Just as they do under Section 1983, some plaintiffs attempt to use the ADA to impose liability on municipalities for failure to train law enforcement officers on interactions with the mentally ill.  At least one court has found that there is no “viable claim” for insufficient training under Title II of the ADA.  Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006) (but “bypassing” the issue of whether Title II requires law enforcement to “draft policies and train officers on the needs of the mentally ill public.”)  To the extent that a failure to train claim may be viable, “[f]ailure to train claims under the ADA are generally analyzed under the same framework as failure to train claims brought against municipalities under 42 U.S.C. § 1983.”  Estate of Saylor v. Regal Cinemas, Inc., No. WMN-13-3089, 2016 WL 4721254 (D. Md. Sep. 9, 2016).     To that end:


The ADA and the Rehabilitation Act prevent public entities and the recipients of federal funding from discriminating against disabled individuals. See Barnes v. Gorman, 536 U.S. 181, 184–85, 122 S.Ct. 2097, 2100, 153 L.Ed.2d 230 (2002). To state a claim for compensatory damages under either statute, a private plaintiff must show that the defendant acted “with discriminatory intent.”  McCullum v. Orlando Reg.Healthcare Sys., Inc., 768 F.3d 1135, 1146–47 (11th Cir. 2014); see Delano–Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination.”).  That requires proof the defendant either intentionally discriminated against the plaintiff or was “deliberately indifferent to his statutory rights.” McCullum, 768 F.3d at 1147 (quotation marks omitted). “To establish deliberate indifference, a plaintiff must show that the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” Id. (quotation marks and alteration omitted).


Boynton v. City of Tallahassee, 650 Fed. Appx. 654, 658 (11th Cir. 2016) 


D.        Immunity


                    The majority of circuits hold that there is no individual liability under Title II of the ADA.  See, e.g., Bowens v. Wetzel, No. 16-3036, 2017 WL 35712 at *2 (3d Cir. Jan. 4, 2017); Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).  Nevertheless, there appears to be an interesting line of divergent cases in the Eighth Circuit.  In Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999), the court noted that the defendants could “not be sued in their individual capacities directly under the provisions of Title II.”  Nevertheless, that court has more recently conducted an extensive analysis of qualified immunity as a defense in an ADA claim brought against police officers who used force against an individual suffering from a psychotic episode.  Roberts v. City of Omaha, 723 F.3d 966, 972 (8th Cir. 2013).  The Roberts court made no mention of whether individual liability was available under Title II and appeared to simply assume that it was – in the course of granting qualified immunity to the officers.


                     Finally, it should be noted that Eleventh Amendment immunity is not available to state actors under Title II.  Most employment lawyers are probably familiar with the Supreme Court’s decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), holding that Congress did not validly abrogate Eleventh Amendment immunity with regard to Title I of the ADA.  In contrast, the Court found that Congress did validly abrogate Eleventh Amendment immunity with regard to Title II in U.S. v. Georgia, 546 U.S. 151 (2006).


III.              Conclusion

                  Interactions between law enforcement and the mentally ill can lead to difficult legal issues.  Hopefully, this article can provide some assistance to attorneys confronted with legal claims. 

1There are certainly possible other claims.  In Holloway v. Purvis, No. 16-60406, 2017 WL 715895 (5th Cir. Feb. 22, 2017), the plaintiff argued that the attempt to seize him pursuant to a “mental writ statute” was a Fourth Amendment unreasonable seizure.  He argued that it amounted to a “warrantless arrest without probable cause,” but the Fifth Circuit rejected that argument.

2For example, in Valle v. City of Houston, 613 F.3d 536, 548 (5th Cir. 2010), the Court found that the plaintiff must show more than a potential for constitutional violations.  Instead, the plaintiff must “link this potential for constitutional violations with a pattern of actual violations sufficient to show deliberate indifference.”  “Prior instances must point to the specific violation in question; ‘notice of a pattern of similar violations is required.’ ... Although it is possible to infer that prior shootings may have involved excessive force, that inference is too tenuous to survive summary judgment.”  Id.

JULY 2017


Sex and Section 1983: Consent as a Defense
By: Jamie Huffman Jones, Friday, Eldredge & Clark, LLP

As a basic principle, no detention officer should engage in a sexual relationship with an inmate. Indeed, at least one circuit has held that it is so patently obvious to not rape an inmate that there is not a need for law enforcement supervisors to train on this subject. 
Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996); Parrish v. Ball, 594 F.3d 993, 999 (8th Cir. 2010). The foundation for no sexual contact rule is found in the Eighth Amendment (or through the Fourteenth Amendment for pre-trial detainees) that punishment shall never be “cruel and unusual.”[1] When an officer and an inmate do engage in consensual sex, the question arises whether consent is a defense to a claim of sexual assault under Section 1983. The circuits are split on the question, but there is a surprising body of authority allowing consent as a defense. In other words, consensual sex in jail between a guard and inmate, while illegal, may not be unconstitutional.

Standard Employed. Before the question of whether consent is a defense can be answered, one must consider the legal standard to be applied. For post-trial detainees, “[a] sexual relationship between an inmate and a guard may rise to the level of harm required for an Eighth Amendment claim. Sex and coercive relationships are complicated and the level of harm—or lack thereof—will depend on the facts of a given case.” Chao v. Ballista, 806 F. Supp. 2d 358, 374 (D. Mass. 2011). Whether sexual abuse rises to the level of “unnecessary and wanton infliction of pain” will depend on the circumstances of the particular case. Boddie v. Schnieder, 105 F.3d 857, 861-62 (2d Cir. 1997). “To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused 'pain' and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997).

Pre-trial detainee cases are generally analyzed under the Fourteenth Amendment. Ojo v. Hillsborough Cty. Dep't of Corr., No. 12-cv-204-SM, 2012 U.S. Dist. LEXIS 142509, at *5 (D.N.H. Sep. 25, 2012)(“The Fourteenth Amendment protects a pretrial detainee from unwanted sexual contact by prison officials. Such a claim may be analyzed by analogy to the legal standards governing excessive force claims.”); Maxwell v. Talley, No. 4:07CV00669 SWW/BD, 2010 U.S. Dist. LEXIS 85200, at *10-11 n.4 (E.D. Ark. July 12, 2010) (“Because Plaintiff Smith was a pretrial detainee at the time of the alleged assault, her claims are analyzed under the due process clause of the Fourteenth Amendment. Under that analysis, a pretrial detainee's constitutional rights are violated if the conditions of confinement amount to punishment.”).

Consent is not a defense to a criminal charge.
 Under most criminal statutes, consent cannot be a defense when a prison guard has sex with an inmate because of the superior relationship of the official. These cases are treated as statutory rape. Along that line, some circuits have recognized that prisoners are incapable of consenting to sexual relationships with a prison official even in a civil Section 1983 case. Lobozzo v. Colorado Dep't of Corr., 429 F. App'x 707, 711 (10th Cir. 2011) (stating, with no analysis, “[i]t is uncontested that Lobozzo, an inmate, could not legally consent to sexual activity with Martinez, a guard”); Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999) (concluding that “as a matter of law . . . the consent defense is unavailable” to a prison guard who engages in a sexual act with a prisoner); Cash v. County of Erie, No. 04-cv-0182, 2009 U.S. Dist. LEXIS 91232, 2009 WL 3199558, at *2 (W.D.N.Y. Sept. 30, 2009). The rationale for these decisions rests primarily on the imbalance of control between prison guards and prisoners. Wood v. Beauclair, 692 F.3d 1041, 1046-1047 (9th Cir. Idaho 2012) (Even if the prisoner concedes that the sexual relationship is “voluntary,” because sex is often traded for favors, it is difficult to characterize sexual relationships in prison as truly the product of free choice.).

Consent can a defense to a constitutional tort. Other jurisdictions allow consent as a full defense to Section 1983 claims. An example is found in the Eighth Circuit case of Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997). In Freitas, a male inmate brought a § 1983 action against a warden and a female prison employee, alleging that a guard sexually harassed him in violation of the Eighth Amendment. After a bench trial, the district court found that the sexual relationship between the inmate and the employee was consensual, so the inmate failed to establish an Eighth Amendment sexual harassment claim. In affirming the district court, the Eighth Circuit agreed with the district court's factual determination that the relationship between the inmate and the employee was consensual, and noted that the record contained no evidence, other than the inmate's unsubstantiated assertions, supporting his claim that he succumbed to the employee's advances because she was his boss and he feared the possible negative consequences of reporting her actions. The circuit court concluded that, because the sexual interactions between the inmate and the employee were consensual, there was no violation of the Eighth Amendment.

On cross-appeal, Mr. Freitas contends that the trial court erred in finding in favor of Ms. Howard on his sexual harassment claim. While we have previously held that prisoners can state a cause of action for sexual harassment under 42 U.S.C. § 1983 . . . we have never specified the underlying basis for such claims. We believe that because the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the “'unnecessary and wanton infliction of pain,'“ . . . forbidden by the Eighth Amendment. . . . To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused “pain” and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind. . . .


Without deciding at what point unwelcome sexual advances become serious enough to constitute “pain,” we hold that, at the very least, welcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute “pain” as contemplated by the Eighth Amendment. Because we hold that Mr. Freitas has not established the existence of the objective component of a cause of action under the Eighth Amendment, we need not discuss the subjective component. We therefore reject Mr. Freitas's argument that the trial court erred in finding for Ms. Howard on his sexual harassment claim.


Freitas v. Ault, 109 F.3d 1335, 1338-39 (8th Cir. 1997).


The Western District of New York applied Freitas in denying an inmate’s claims under Section 1983 that she was raped by three prison officials:


Furthermore, even if it is assumed arguendo that Fisher's hearing testimony was credible, she still has not established a clear or substantial likelihood of success on the merits with respect to a number of the individual defendant correction officers. On her claims of rape under § 1983, Fisher has the burden of showing lack of consent. Lyons v. Williams, 91 F.3d 1308, 1311 (9th Cir. 1996), cert. denied, 136 L. Ed. 2d 837, 117 S. Ct. 949 (1997). Fisher's own testimony about her sexual relationships with defendants Schwartz, Hemley and Kuttner can only reasonably be interpreted as showing that the relationships were consensual in nature. While testifying, Fisher never used the word “rape” to describe her sexual interactions with these defendants. In contrast, she expressly stated that defendants DiSalvo and Schmidt “raped” her. Further, she presented no evidence that either Schwartz, Hemley or Kuttner forced, threatened or coerced her to have sex. She admitted that she did not resist them or tell them no. She testified that she had sexual relations with Schwartz and Hemley on several occasions and described each of them as a “friend.” She indicated that she ended her sexual relationship with Schwartz, not because he raped or abused her, but because she “didn't miss him” when she was at Bedford Hills. Although, as stated above, Fisher's prison records indicate that she was never hesitant or afraid to complain to prison officials about perceived mistreatment by correction officers, she did not report her alleged sexual interactions with these defendants until months after they occurred, and she testified that she had sexual relations with Hemley even after she had reported him. Thus, with regard to Schwartz, Hemley and Kuttner, Fisher has failed to show lack of consent, even if her testimony is assumed to be true. . . .


Applying Freitas to the instant case, the Court finds that, even if Fisher's testimony had been found credible, Fisher failed to establish an Eighth Amendment violation with regard to defendants Schwartz, Hemley and Kuttner. As stated above, Fisher's own description of her alleged sexual relationships with these individuals shows that they were consensual. Under Freitas, consensual sexual interactions between a correction officer and an inmate, although unquestionably inappropriate, and in this Court's view despicable, do not constitute cruel and unusual punishment under the Eighth Amendment.


Plaintiffs argue that there exists a “power discrepancy” between a correction officer and an inmate, making it impossible for an inmate to ever truly consent to having sexual relations with a correction officer. While the Court agrees that a correction officer's position of authority over an inmate is a factor that should be considered when determining, factually, whether or not there was consent, plaintiffs have cited no case law or applicable statutory authority to support the proposition that an inmate may never, as a matter of law, consent to sexual relations with a correction officer. Indeed, the Eighth Circuit, in Freitas, clearly held that an inmate may consent to sexual relations with a prison employee. Here, there is no credible evidence that either Schwartz, Hemley or Kuttner used their positions as correction officers to force, threaten or coerce Fisher into having sex.


Fisher v. Goord, 981 F. Supp. 140, 174-75 (W.D.N.Y. 1997).


When defending cases arising out of sex between an inmate and a guard, consent may be a defense in your jurisdiction. While not exhaustive, the cases cited here and below may be useful in determining if and when the defense of consent is viable.

Sex with Consent between a prisoner and guard is:

Never a violation of the eighth amendment:

  • 2nd Cir.
    • Fisher v. Goord, 981 F.Supp. 140, 174-75 (W.D.N.Y. 1997) (“Under Freitas, consensual sexual interactions between a correction officer and an inmate, although unquestionably inappropriate, and in this Court’s view despicable, do not constitute cruel and unusual punishment under the Eighth Amendment.”)
  • 3rd Cir.
    • Phillips v. Bird, Civil Action No. 03-247-KAJ, 2003 U.S. Dist. LEXIS 22418, at *17-18 (D. Del. Dec. 1, 2003) (”That an inmate cannot assert consent as a defense to the crime articulated in 11 Del. C. § 1259 does not mean that an inmate can avoid the consequences of consent in a civil suit.”)
  • 5th Cir.
    • Petty v. Venus Correctional Unit, 2001 WL 360868 at *2 (N.D. Tex. April 10, 2001) (dismissing inmate's § 1983 claim because "plaintiff has not shown the alleged [sexual] harassment to have caused him pain").
  • 8th Cir.
    • Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997)("[W]e hold that, at the very least, welcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute 'pain' as contemplated by the Eighth Amendment").
  • 10th Cir.
    • Graham v. Sheriff of Logan Cty., No. CIV-10-1048-F, 2012 U.S. Dist. LEXIS 189549, at *31 (W.D. Okla. Nov. 1, 2012) (holding that one time consensual encounter that did not result in any favors could not constitute a violation of eighth amendment rights)

May be a violation of the eighth amendment:

  • 1st Cir.
    • Chao v. Ballista, 772 F. Supp. 2d 337, 349 (D. Mass. 2011) (differentiating the factual circumstances from Freitas v. Ault, and holding that consent cannot be determined as a matter of law and must be a factual inquiry found at trial).
  • 2nd Cir.
    • Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (holding that severe or repetitive sexual abuse of an inmate by a prison officer can constitute an Eighth Amendment violation).
  • 3rd Cir.
    • White v. Ottinger, 442 F. Supp. 2d 236, 241 (E.D. Pa. 2006) (holding that evidence that officer knew she was in a position of power and that is why the inmate agreed to sexual acts created a genuine issue of material fact as to consent and the evidence could prove assault occurred which was sufficiently serious enough to constitute violation of eight amendment rights).
  • 8th Cir.
    • Morgan v. Glen, No. 6:12-cv-06098, 2014 U.S. Dist. LEXIS 14740, at *11 (W.D. Ark. Feb. 6, 2014) (“Even voluntary sex may rise to the level so as to constitute a violation of the Eighth Amendment.”) (citing Chao v. Ballista, 772 F. Supp.2d 337 (D.Mass. 2011))
  • North Dakota Supreme Court
    • Grager v. Schudar, 2009 ND 140, ¶ 18, 770 N.W.2d 692, 697 (“An adult prisoner's apparent consent to or participation in sexual conduct with a jailer imposes neither absolute liability on the jailer nor a complete bar to the prisoner's recovery in a civil action premised upon the sexual conduct”)

Per se a violation of the eighth amendment:

  • 2nd Cir.
    • Cash v. County of Erie, 2009 WL 3199558, at *2 (W.D.N.Y.) ("Because plaintiff was incarcerated, she lacked the ability to consent to engage in sexual intercourse with [defendant guard] Hamilton as a matter of law).
  • 3rd Cir.
    • Carrigan v. Davis, 70 F. Supp. 2d 448, 452-53 (D. Del. 1999) (holding as a matter of law that vaginal intercourse or fellatio between an inmate and officer is a per se violation of the Eighth Amendment).
  • 10th Cir.
    • Lobozzo v. Colo. Dep't of Corr., 429 F. App'x 707, 711 (10th Cir. 2011) (“It is uncontested that Lobozzo, an inmate, could not legally consent to sexual activity with Martinez, a guard. And no one disputes that rape is sufficiently serious to constitute a constitutional violation.”)


[1] In most, if not all, states sex between a prison guard and an inmate is always rape because the inmate is presumed to be incapable of giving consent while incarcerated.




JUNE 2017

Nonconforming Ninth Circuit Rule on Excessive Force Overturned by SCOTUS


In County of Los Angeles v. Mendez, the United States Supreme Court overturned a Ninth Circuit doctrine called the “provocation rule” applied in police excessive force cases. This rule, favoring plaintiffs, held that a police officer’s otherwise reasonable force was unreasonable under the Fourth Amendment “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.”


In Mendez, police sought an armed and dangerous parolee whom they believed was hiding in or around a residence. The police found a shack in the rear of the target residence and entered the shack without a warrant, did not knock and announce their presence, and confronted plaintiffs who were napping. Mendez rose from his bed holding a B.B. gun he used to kill vermin. Alarmed by the sight of a gun, the officers opened fire, hitting plaintiffs with multiple shots.


The trial court awarded nominal damages on the claims of warrantless search and the no-knock entry but held the officers’ use of force was objectively reasonable under Graham v. Connor, 490 U. S. 386 (1989). Nonetheless the trial court applied the provocation rule, finding the officers liable for use of excessive force. On appeal, the Ninth Circuit afforded the officers qualified immunity on the no-knock entry claim, held the warrantless search violated clearly established law, and upheld application of the provocation rule.


The Supreme Court reversed application of the provocation rule, holding the Fourth Amendment provides no basis for the rule because it is inconsistent with the settled and exclusive analysis used to determine whether force complies with the Fourth Amendment. Under Graham, the court must examine “whether the totality of the circumstances justifie[s] a particular sort of seizure” from the perspective of a reasonable officer in possession of those facts at the time. The provocation rule essentially established an alternate Fourth Amendment analysis, first to determine if a separate constitutional violation created a situation that led to the use of force and, second, to determine whether the separate violation was committed by the officers intentionally or recklessly. The Court reasoned that every potential violation should be analyzed separately. Under the provocation rule, however, the courts would have to apply vague standards of causation and gauge the subjective intent of the officers by conflating all alleged Fourth Amendment violations into one transaction.


The hallmark of Fourth Amendment jurisprudence is objective reasonableness. An officer should not be held liable if his actions are objectively reasonable in light of the facts and circumstances of which he was aware at the time he acted. The provocation rule, according to the Supreme Court, was an unwarranted and illogical extension of Graham. With its reliance on causative relationships of distinct acts, the rule converts Fourth Amendment jurisprudence into proximate cause tort law. The Supreme Court, in its unanimous decision, righted the Fourth Amendment ship in the Ninth Circuit.



APRIL 2017

Qualified Immunity Continues to Receive Favorable Review by SCOTUS Content


In White v. Pauly, United States Supreme Court, No. 16–67, decided January 9, 2017, the Court granted qualified immunity to a police officer who arrived late at an ongoing police action, witnessed shots being fired by an occupant of a house surrounded by other officers, and then shot and killed an armed occupant of the house without first giving a warning. Leading up to the shooting, three police officers went to a secluded house where they believed a suspect would be found. Their purpose was to investigate an allegation of drunk driving and road rage. The officers surrounded the house and shouted to the occupants to come out or they were coming in. One officer gave one warning they were police. The scene was confused, but one occupant of the house shouted back at the officers they had guns, then one occupant fired two shots from the back door. A few seconds after the shots, another man, Samuel Pauly, pointed a gun out of a window toward Officer White who eventually shot Pauly. The evidence was undisputed Officer White arrived after the first three officers and did not witness everything that occurred before Pauly pointed his gun out of the window.

In the lawsuit that followed, the district court denied qualified immunity to the officers, including Officer White, and the circuit court of appeals affirmed because, in its view, a reasonable officer in White’s position would believe that the law clearly established that a warning was required before using deadly force, despite the threat of serious harm to a law enforcement officer. The counter-argument was expressed by a dissenting circuit judge, noting he was “unaware of any clearly established law that suggests . . . that an officer . . . who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.” 817 F. 3d 715, 718 (CA10 2016).

The Supreme Court said in its per curiam opinion: “Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011). As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case. Anderson v. Creighton, 483 U. S. 635, 640 (1987). Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’ Id., at 639.” On the facts of Officer White’s claim for qualified immunity, the Court adopted the circuit’s view that the facts he presented to support his qualified immunity were “unique” but went further to opine the circuit court, if it were to deny qualified immunity, should have identified a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment, rather than rely on a generalized formula to analyze use of force.


This case illustrates an important point for defense lawyers – a unique set of circumstances will not fit into a pattern use-of-force formula, greatly increasing the opportunity to obtain qualified immunity for the officer. In other words, the more unusual the facts, the more likely the officer should be given the benefit of the doubt and qualified immunity if his actions are otherwise reasonable.

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