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Posts Tagged ‘excessive force’

Can Silence Be Bought as Part of a Settlement of a Use of Force Claim?

Posted on: July 30th, 2019

By: Jake Loken

Can silence be bought, especially of those who claim excessive use of force? The City of Baltimore thought so, until the Fourth Circuit Court of Appeals said otherwise.

In Overbey v. Mayor of Balt., No. 17-2444 (4th Cir.), decided July 11, 2019, the Fourth Circuit found that public policy and First Amendment rights outweighed the interests of the City of Baltimore in enforcing non-disparagement clauses found in the City’s settlement agreements, which settled use of force claims.

The Fourth Circuit explained that when an individual brought claims of excessive force, the City of Baltimore would only settle the claims if the individual agreed to a non-disparagement clause, which constitutes a waiver of the individuals First Amendment rights, as it prevents that individual from speaking about their claims, the facts of their claims, or the settlement process itself. If the individual did speak out, the non-disparagement clause would be breached, and the individual would be required to return half of the settlement amount back to the City.

Usually, individuals may waive their constitutional rights as part of a settlement, but only if “the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement.” But in the case of non-disparagement clauses, where individuals’ First Amendment rights are waived regarding speaking out about alleged excessive, the Fourth Circuit said such clauses were unenforceable. The Fourth Circuit explained that “unpleasantly sharp attacks on government and public officials can play a valuable role in civil life and therefore enjoy the protection of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle.”

The ruling is a reminder that public policy must be taken into consideration when deciding to contractual wave constitutional rights, and acts as a reminder that silence can be hard to buy.

If you have any questions or would like more information, please contact Jake Loken at [email protected].

Are We Witnessing the End of Qualified Immunity?

Posted on: September 19th, 2018

By: Sun Choy

For many decades, qualified immunity has served as a powerful defense to end civil cases against public officials, including law enforcement officers for the alleged use of excessive force.  Given the many high-profile deaths involving the use of force by officers, progressives have again called for the end of qualified immunity.  Even some conservatives are now calling for an end to qualified immunity.  In a recent National Review article, the author lays out a conservative rationale to end qualified immunity, which is primarily based on the “plain meaning” of the statutory language of 42 U.S.C. § 1983.  With progressives and conservatives joining forces, is it only a matter of time before the Supreme Court ends qualified immunity?

If you have any questions or would like more information, please contact Sun Choy at [email protected].

Study Finds No Significant Impact of Body Cameras on Police Conduct or Citizen Complaints

Posted on: November 13th, 2017

By: Wesley C. Jackson

In response to recent high-profile officer-involved shootings, many commentators are touting police body cameras as a way to keep police accountable. The hypothesis is that when police and citizens know they are being watched, they are more likely to behave civilly during confrontations. Specifically, body cameras are thought to deter officers from engaging in excessive force or other unprofessional conduct and to encourage citizens to be less resistant or combative when interacting with police.

But how does this theory hold up under examination? Not very well, according to a working paper discussing the findings of a recent controlled study of policing behaviors and outcomes in the Metropolitan Police Department of the District of Columbia. The study found that the use of police body cameras had no statistically significant impact on officers’ use of force, citizen complaints, policing activity, or judicial outcomes.

The study examined the effect of police body cameras on multiple variables as the D.C. Metropolitan Police Department began issuing cameras to its officers. Specifically, the study observed officers who were randomly assigned body cameras and compared those officers’ rates of use of force and citizen complaints to a control group of officers who did not receive cameras. The evaluation period ran for 18 months from June 2015 to December, 2016.

The paper’s authors concluded that as to use of force, citizen complaints, police activity, and judicial outcomes, the analyses “consistently point to a null result: the average treatment effect on all of the measured outcomes was very small, and no estimate rose to statistical significance at conventional levels.” In other words, the use of police cameras produced no measurable difference in police conduct, at least in this study.

What explains this unexpected outcome? One explanation is simply that body cameras do not change police or citizen behavior. Indeed, in the heat of the moment, the implications of a body camera will likely be the last thing on an officer’s or citizen’s mind. The researchers also posit that the results could be particular to the D.C. police: as the police force for the nation’s capital, the D.C. police may already be more disciplined than the average police force due to the increased scrutiny it receives and the officers’ frequent experience handling citizen interactions under pressure at inaugurations, protests, and other such events. Additionally, the results could be due to a “spillover” effect: officers who were not assigned body cameras may nevertheless have adjusted their conduct, knowing that other officers in the area may be wearing body cameras.

The researchers concluded that “Law enforcement agencies . . . that are considering adopting [body cameras] should not expect dramatic reductions in use of force or complaints, or other large-scale shifts in police behavior, solely from the deployment of this technology.” Even so, agencies should note that the study did not examine one important consideration in adopting body cameras: the effect additional video evidence will have on civil rights lawsuits alleging improper police conduct. Even if the use of body cameras will not produce department-wide improvements in police conduct, they could still be useful in defending officers and municipalities in civil rights lawsuits.

Police body cameras can also provide non-measurable benefits, such as streamlining internal investigations of citizen complaints and providing the appearance of police accountability to the community. That is to say, while this recent study does not establish that police body cameras have a measurable effect on policing, body cameras may nevertheless be a useful tool to departments for other reasons.

If you have questions about this topic or would like more information, please contact Wes Jackson at [email protected].

Home Run for Analysis of Use of Force During Medical Emergencies

Posted on: October 31st, 2017

By: Kevin R. Stone and Sara E. Brochstein

I’m bad at baseball.  When I step in the batter’s box, I might as well have two strikes against me before the pitcher unleashes his first fastball.  For me, it’s no big deal; I’m destined to strike out anyway.  The Sixth Circuit, however, recognizes that’s no way to treat law enforcement officers faced with the difficult choice to use force in response to medical emergencies.

In determining whether a Fourth Amendment violation has occurred in excessive force cases, the evidence must demonstrate that the officer’s actions were “objectively reasonable” under the totality of the circumstances.  The Supreme Court has provided three over-arching factors to consider in this analysis: (1) the severity of the crime; (2) whether the suspect actively resisted or evaded arrest; and (3) whether the suspect posed an immediate threat.  (The Graham factors.)

When responding to a medical emergency, however, two of those factors usually don’t exist: no crime (strike one) and, by extension, no resisting or evading arrest (strike two).  Thus, the officer’s choice to use force may rest on a single factor, which the officer may have to assess and act on in a split second.  Acknowledging that the Graham factors are not exhaustive and that medical emergencies create unique challenges for law enforcement officers, the Sixth Circuit, in Hill v. Miracle, established a list of additional non-exhaustive factors to consider when determining whether an officer’s use of force is objectively reasonable in such situations:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The court explains: “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity.  These questions and answers serve as a guide to assist the court in resolving the ultimate issue of whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”

The Sixth Circuit’s opinion drives home the principle that rote application of the Graham factors may cause an unfair strike out.  Objective reasonableness requires an examination of the totality of the circumstances and deserves a careful, fact-specific assessment in each case.  Whether other circuits will hit home runs and also apply these new factors remains to be seen.

If you have any questions or would like more information, please contact Kevin R. Stone at [email protected] or Sara E. Brochstein at [email protected].