U.S. Fifth Circuit Case Alert

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Officer should be aware of the below case.  The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene.  In such a case, because the law is clearly established, an officer will be denied qualified immunity.  It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.

Fifth Circuit

Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Tex. Jan. 12, 2017)

Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.

The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.

First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.

Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.

Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”

The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.

However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40611/16-40611-2017-01-12.pdf?ts=1484267434
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The Standard for Use of Force

I have heard some talk recently about a need to re-visit the standard for determining whether a use of force by police officers is excessive.  This article in the New York Times written by Yale Law students illustrates the nature of the movement.  Here are some problems with the arguments presented in this article.

At the most basic level, the law in Louisiana does not give law enforcement any extra authority to use force against others except that La. C.Cr. P. Art. 220 provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.

It is the word “reasonable” which causes consternation for folks such as the authors of the above referenced N.Y. Times article.  Here, the reasonableness referred to is the degree or type of force.  Of course, the flip-side to this article is that people have the right to use reasonable force to resist an unlawful arrest.

In order for something to be “reasonable” it has to be in compliance with the law.  For that guidance, we look to La. R.S. 14:19 and La. R.S. 14:20.  It is important to note that La. R.S. 14:19 and La. R.S. 14:20 are not specifically directed toward law enforcement, but are the general rule that governs everyone within the boundaries of the State of Louisiana.

La. R.S. 14:19 reads as follows:

A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
(b)(i) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person using the force or violence reasonably believes that the use of force or violence is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(ii) The provisions of this Paragraph shall not apply when the person using the force or violence is engaged, at the time of the use of force or violence in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
(2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

Paragraph A(2) tells us that this does not apply if the force used results in a homicide.  For that we have to look to La. R.S. 14:20, which reads as follows:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the dwelling, place of business, or motor vehicle when the conflict began, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Again, I will point out that this is the standard that applies to all within the political boundaries of the State of Louisiana.

Specifically for law enforcement, we look to the U.S. Supreme Court’s holding in the case of Graham v. Connor, 490 U.S. 386.  Prior to Graham, the court used the test developed in Johnson v. Glick, 481 F.2d 1028, to determine if a use of force by law enforcement was constitutionally excessive.  The test in Johnson required that there be proof that the force was applied maliciously and sadistically to cause harm based on the 8th Amendment to the U.S. Constitution.

In Graham, the Court decided that the standard should be based on the 4th Amendment to the U.S. Constitution instead of the 8th Amendment.

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

Graham v. Connor, 490 U.S. 386, 387, 109 S. Ct. 1865, 1867, 104 L. Ed. 2d 443 (U.S. 1989).

Folks such as the authors of the N.Y. Times article referenced above, suggest that the law should embody the DOJ’s necessity standard which states:

 

The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.

I think this is an interesting argument, particularly in light of the fact not one officer involved shooting involving an FBI agent has ever been deemed excessive.  See this N.Y. Times article.

The Graham standard has served us well and it should not be disturbed.  If the Graham standard is turned into a necessity standard, I would recommend that everyone in law enforcement get out — unless you work for the FBI.

A Tale of Two Cities; LAPD’s Twelve Year Consent Decree

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     In May of 2013 the Los Angeles Police Department was unceremoniously released from a twelve year consent decree in a three-line ruling by District Judge Gary Feess; the same federal judge responsible for extending LAPD’s original time frame from five years to ten, and eventually twelve years. The LAPD was the first municipal police agency to undergo a consent decree after Congress granted the Justice Department new powers to seek injunctive relief by suing state and local governments in federal court – powers extended specifically to address problems in the LAPD that would later be used in binding over 20 additional U.S. agencies in consent decrees.

     “When the decree was entered, LAPD was a troubled department whose reputation had been severely damaged by a series of crises, In 2008, as noted by the monitor, ‘LAPD has become the national and international policing standard for activities that range from audits to handling of the mentally ill to many aspects of training to risk assessment of police officers and more,’” Feess wrote of the release.

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#NOPD Use of Force Update – Ch. 1.3

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This is a general review of NOPD policies on the use of force.  The Department should be providing use of force training and nothing contained herein should be considered to supplant any information provided in official training.  In fact, if anyone notes something in this article which is contrary to what is being taught in training, please let me know.

Chapter 1.3, titled Use of Force, will be effective on August 9, 2015 and will replace Policy/Procedure 300.

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Summary of 5th Circuit ECW Cases #FOP #FOPNO #FOPLegal

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In Louisiana, qualified immunity in any civil rights case brought under 42 USC § 1983 is decided based on analysis under Graham v. Connor, 490 U.S. 386 (1989) and whether or not the law was clearly established. Whether the law is clearly established is generally based on decisions on the U.S. Supreme Court and the local Circuit cases. Louisiana is in the Fifth Circuit. A summary of Fifth Circuit cases regarding the use of ECW in dart mode follows. Officer should pay particular attention to the cases marked RESTRICTIVE.

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Use of Force – Part 1 #FOP #FOPNO #NOPD

20130618-201545.jpgMy intention here is to post a number of articles all related to Use of Force.  I am going to begin with a recap of the U.S. Supreme Court decision in Graham v. Connor, 490 U.S. 396 (1989).  I will review some Louisiana legislation as it relates to all citizens and law enforcement.  I will be discussing the AELE Use of Force Reporting Guide, which you can access by clicking here.  You should keep a copy of the Use of Force Reporting Guide handy.  You can also pull up a copy of the Use of Force Reporting Guide using the FOP CCL2 mobile app.  Once that is covered, I will move on to some more specific info as it relates to the policies and procedures of the New Orleans Police Department.  If you, the dedicated reader, would like to see something specific along the way, feel free to bring it to my attention.

The legal tradition in Louisiana is mainly contained within the various codes containing the law.  The Code of Criminal Procedure is where we can find authority to use force effect an arrest.

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.  La. Code Crim. Proc. Ann. art. 220.

We can make a few determinations based on the contents of this provision alone:

  1. Citizens only have the duty to submit peaceably to a lawful arrest.
  2. The force used must be “reasonable”
  3. Once any resistance or threat of resistance ceases, so does the authority to use force.

In fact, La. R.S. 14:19, entitled Use of Force or Violence in Defense states:

The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
La. Rev. Stat. Ann. § 14:19

As you can see, the standard that protects your average citizen is substantially similar to the standard that protects law enforcement officers — reasonable and apparently necessary.

U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

Graham v. Connor

Graham was a diabetic.  He had been performing some mechanic work and had not been feeling well.  He asked a friend of his to drive him to get some orange juice.  His friend, Berry, drove Graham to a convenience store.  As it turns out, Connor, a police officer with the Charlotte Police Department in North Carolina, was sitting in the parking lot of the convenience store.

When he got to the convenience store, Graham got out of the car he was riding in and entered the store.  When he got inside, he decided the line was too long and left the store. Graham then asked Berry to drive him to a friend’s house where he would be able to counteract his low blood sugar.

Connor, sitting in the parking lot, observed Graham walk into the store hurriedly.  He also observed Graham exit the store in a hurry and jump back into his car.  Connor found Graham’s actions to be suspicious.

Connor initiated an investigative stop of Berry’s vehicle.  After Connor told Graham and Berry to sit tight while he found out what happened at the store, Graham exited his car, ran around the car twice, and then passed out.  Graham was subsequently handcuffed.  As you probably know, or at least suspect, the officers learned that nothing had happened at the convenience store.  Graham suffered some minor injuries.  He later filed a federal civil rights claim against Connor, et al.

The lower courts ruled in the officers favor, applying a standard of review relative to a 14th Amendment “substantive due process” claim.  The case continued up to the U.S. Supreme Court where the court ultimately remanded the case for additional proceedings.

The U.S. Supreme Court rejected the notion that excessive force cases should all be handled as 14th Amendment cases.  Instead, the Court held that a 4th Amendment seizure occurred when officers used force.  In Graham’s case, he was bodily seized when the handcuffs were applied.  Since the force used constituted a seizure, the determining factor would be reasonableness.

Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ ” against the countervailing governmental interests at stake. Id., at 8, 105 S.Ct., at 1699, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S., at 22–27, 88 S.Ct., at 1880–1883. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8–9, 105 S.Ct., at 1699–1700 (the question is “whether the totality of the circumstances justifie[s] a particular sort of … seizure”).

Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871-72, 104 L. Ed. 2d 443 (U.S.N.C. 1989)

The reasonableness of the use of force is to be judged from the perspective of a reasonable officer on the scene, without the benefit of 20/20 hindsight.    The Court went on to hold:

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (U.S.N.C. 1989)
Louisiana Supreme Court

Louisiana Supreme Court (Photo credit: Wikipedia)

In Louisiana, the reasonableness standard is already incorporated into the Code of Criminal Procedure, as mentioned above.  The Louisiana Supreme Court stated:

Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers.

Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La. 1977)

I will leave you with this:

Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment.

Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La. 1977)

This link is to the AELE’s Use of Force Reporting Guide.  There is also a link to the Use of Force Reporting Guide in the FOP CCL2 Smart Phone App.  It is an excellent reference guide and everyone should familiarize themselves with it and keep a copy handy for quick reference.  Next time, I will discuss the types of things in the Use of Force Reporting Guide more thoroughly.

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Reporting Use of Force in NOPD

I am going to start this off by saying that I am making some assumptions based on the DOJ report issued on March 16, 2011 and what may be in a Consent Decree which may be implemented in the future.

The first 25 pages of the March, 2011 DOJ report on the New Orleans Police Department are about Use of Force.  In summary, the Department of Justice is of the opinion that the New Orleans Police Department, its management, its supervisors, and all of its employees are derelict in their Constitutional obligations with regard to the use of force by police officers.

We find reasonable cause to believe that NOPD engages in a pattern or practice of unconstitutional force.

DOJ Report, P. 1.  The DOJ report goes on and on about use of force policies, use of force training, use of force reporting, use of force investigation, use of force review, and use of force tracking and analysis.

My intention here is not to legitimize what I believe is a document that contains as much creative writing as it does factual information (aorta of corruption, my ass).  However, I think that the men and women of the New Orleans Police Department can expect to see additional changes in reporting Use of Force instances.  In fact, we have already seen an increase in the number of DI-1 investigations centered around the reporting of a use of force.  In addition, the New Orleans Police Department is currently re-writing its Operations Manual and I am confident (read “hopeful”) that there will be some changes to the current policies with regard to use of force and its reporting.  One way or another, there will be an increased emphasis on reporting use of force incidents because that is the only way for the NOPD to prove that it is not engaged in a pattern or practice of unconstitutional force (much like FIC’s are the easiest way to prove that the NOPD is not engaged in a pattern or practice of unconstitutional stops).

You can rest assured that any DI-1 investigation which contains even a whisper of a use of force will lead the investigators to look for a Resisting Arrest Report.  You can also rest assured that additional accused officers will be added to the DI-1 investigation if there is no Resisting Arrest Report whether the force used was appropriate or not.

For line officers and supervisors:

  1. Familiarize yourselves with Operations Manual Chapters 1.2 and 1.3.
  2. If you have to put hands on any individual other than the common application of handcuffs, you should notify your supervisor immediately.  If in doubt, notify a supervisor.
  3. Call EMS.
  4. Remember:  The camera can be your best friend.  Make sure the camera in your car and on your TASER is functional and use it as efficiently as possible.  Using your TASER for its camera is probably a use of force (notify your supervisor).
  5. Generate a report associated with the incident and document who you notified and when.

For supervisors who have been notified of a use of force by a subordinate:

  1. Make the scene;
  2. Interview all parties and witnesses;
  3. When speaking with officers and witnesses, make sure you are comparing apples to apples and oranges to oranges.  In other words, if an officer says he used an arm bar, make sure that your understanding of an arm bar matches the officer’s understanding of an arm bar.
  4. Remember that it will be necessary to write a Resisting Arrest Report for any incident which results in injury or complaint of injury by the officer or a member of the public as a result of any police action.
  5. If in doubt, write the Resisting Arrest Report.
  6. Don’t forget to write a First Report of Injury for the officer if the officer is injured, complains of injury or might reasonably have been injured in the incident.

As usual, if you are the accused officer or a witness in any DI-1 investigation, you should call one of the FOP attorneys and obtain representation.  FOP members are entitled to legal representation as a benefit of membership in Crescent City Lodge #2.  If you are a member of another FOP Lodge, and you are a member of the FOP Legal Defense Plan, you can click here for a list of approved attorneys.