Unintentional levels of force in s. 1983 excessive force claims.

AuthorPittman, Nathan R.

TABLE OF CONTENTS INTRODUCTION I. HISTORY OF [section] 1983 II. HENRY AND TORRES III. EXCESSIVE FORCE CLAIMS UNDER [section] 1983 A. History B. Graham v. Connor IV. QUALIFIED IMMUNITY A. Doctrine B. Qualified Immunity Critiques 1. Criticisms 2. Excessive Force and the Fourth Amendment V. UNINTENTIONAL LEVELS OF FORCE A. Reasonable Mistakes B. Qualified Immunity VI. MODEL ANALYSIS CONCLUSION INTRODUCTION

In the early morning hours on New Year's Day 2009, Bay Area Rapid Transit (BART) Police in Oakland, California, responded to reports of a fight on one of the city's trains. (1) Twenty-two-year-old Oscar Grant was one of several men pulled off of the train. (2) Grant offered some initial resistance but was soon detained by police, who laid him flat on his stomach with his arms behind his back. (3) At this point, the routine police detention took a tragic and unexpected turn. One of the officers involved in detaining Grant, Johannes Mehserle, allegedly told another officer on the scene that he was going to stun Grant with his Taser. (4) When Mehserle stood up to Tase Grant, he instead drew his firearm and fatally shot Grant in the back. (5)

The State of California chose to bring criminal charges against Mehserle, and he was convicted of involuntary manslaughter. (6) It is possible, however, that Grant's family might have pursued a civil remedy for violation of Grant's Fourth Amendment rights. Under 42 U.S.C. [section] 1983, there is a private cause of action against

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and [the] laws. (7) Under the language of [section] 1983, an excessive force claim might have been brought against Mehserle for his fatal shooting of Grant. In that case, the question would be whether a police officer who shoots a suspect, although intending to Tase him, is subject to liability for excessive force under [section] 1983.

Although Grant's shooting is perhaps the most famous example of police officers confusing their handguns for Tasers, it hardly marked the first time that officers had employed such unintentional force. In Henry v. Purnell, the Fourth Circuit considered whether a police officer who unintentionally drew his firearm instead of his Taser and shot a fleeing suspect in the elbow was liable under [section] 1983 for using excessive force. (8) In Torres v. City of Madera, the Eastern District of California considered a case, on remand from the Ninth Circuit, in which a police officer mistakenly drew her firearm and killed a suspect in the back of her police car. (9) In both of these cases, the courts initially found that the defendant officers did not violate the Fourth Amendment, and even if they had, they were entitled to qualified immunity for their actions. (10) These cases were subsequently reviewed, and although the courts denied qualified immunity, both the Fourth and the Ninth Circuits found that an issue of fact remained as to whether the officers' actions were reasonably mistaken and therefore not a violation of the Fourth Amendment. (11)

The purpose of this Note is to use these cases to explore the implications of [section] 1983 excessive force claims when police unambiguously intend to use a reasonable level of force and instead employ an unreasonable level of force. Critically, unintentional levels of force in excessive force claims are new. Although scholarship and jurisprudence exists on reasonable mistakes, existing literature tends to focus on mistakes officers made about whether the conduct that they intend to carry out was constitutional or about mistakes of fact. (12) This Note evaluates the outcomes of Henry and Torres to determine whether they are consistent with the history of [section] 1983, the policy ramifications of the excessive force doctrine, and the qualified immunity doctrine.

Finally, this Note also makes a recommendation as to how unintentional level of force cases should be resolved in the future. This Note argues that the "reasonable mistake" standard developed in Henry and Tortes provides too much protection to police officers. The analysis in these cases undermines the objective reasonableness test that governs excessive force cases under the Fourth Amendment and creates the potential for unintentional uses of force to become a wider defense to excessive force claims. Therefore, this Note should not be understood to apply only to Taser/handgun scenarios but to any situation in which police officers unambiguously intend to use lawful force and instead use unlawful force. This Note recommends that unintentional level of force claims should be treated like any other excessive force claim: judged by the objective conduct, and not the subjective intent, of the officer.

This Note first traces the history of [section] 1983 and explores its aspirational nature. This Note then traces the framework of a [section] 1983 analysis, focusing on the substantive Fourth Amendment violation and the additional qualified immunity analysis. Finally, this Note concludes by laying out the model analysis.

  1. HISTORY OF [section] 1983

    The awakening of [section] 1983 in the middle of the twentieth century represents a transformative moment in American law. Many of the signature advancements in civil rights that marked the middle of the century emerged from [section] 1983 litigation. (13) Section 1983 was awakened from its long, post-Civil War sleep via the Supreme Court's decision in Monroe v. Pape. (14) The original intent of the statute, as discussed by the Monroe Court, was to combat lawlessness in the Reconstruction South stemming from the violent actions of the Ku Klux Klan. (15) Section 1983--or [section] 1 as it was then known (16)--was one of the Reconstruction Congress's attempts to assert the supremacy of the national government, which had been recently entrenched by the Fourteenth Amendment. (17) Although this parochial intent does not readily lend itself to the expansive role that [section] 1983 has played, (18) the Monroe Court saw fit to expand [section] 1983 to encompass the principle that "Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." (19)

    Today [section] 1983 occupies a central position in civil rights jurisprudence, in part because of the failure of its fellow civil rights statutes. Eugene Gressman, a legal scholar writing before Monroe, characterized this failure: strict judicial construction of the Civil War Amendments and the civil rights statutes that implemented them had reduced "It]he civil rights program of the Reconstruction era ... to a pitiful handful of statutory provisions, most of which are burdened by the dead weight of strict construction." (20) Gressman was concerned that civil rights, which "were conceived of as inherent ingredients of national citizenship and as such were entitled to federal protection," (21) had given way to a stifling judicial interpretation that reflected antebellum fears about the federal government. (22) Although he lamented the state of civil rights legislation, Gressman did not view [section] 1983 as a means of rejuvenating protections for civil rights. (23) This was because, in contrast to other civil rights statutes, the lack of enforceable federal rights up until the mid-twentieth century made [section] 1983 essentially dormant. (24)

    The story of the revival of [section] 1983, then, is inseparable from the broader story of the revival of federal protections for civil rights-what fifty years after Gressman's article could be called the "Second Reconstruction." (25) The genius of civil rights statutes such as [section] 1983 is that because they "provide mechanisms for enforcing constitutional rights, when the Court recognizes a new constitutional right, or broadens an existing one, the reach of civil rights statutes inevitably also expands." (26) Section 1983 is woven into the fabric of constitutional jurisprudence and "represents the primary vehicle used by parties to vindicate their constitutional rights against state and local government officials." (27) This symbiosis between [section] 1983 and the wider scheme of fundamental civil rights that developed during the twentieth century led Justice Blackmun to state that [section] 1983 stands "for the commitment of our society to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful." (28) Justice Blackmun is not alone in considering [section] 1983 a "super statute." (29) This view of [section] 1983 treats it as an aspirational statute, one that has a central role to play not only in protecting civil rights but also, through its symbiosis with the concept of rights in general, in developing the very dialogue of rights. (30)

    Justice Blackmun grew concerned, noting that "recent opinions of the Supreme Court appear to reflect a growing uneasiness with the heretofore pronounced breadth of the statute and ... a tendency to strain otherwise sound doctrines in order to ease the perceived federalism tensions generated by [section] 1983 actions." (31) Blackmun's concerns about federalism, and his plea for the Court to leave the balance of decision-making authority between unelected judges and elected officials to Congress, (32) echo Gressman's historical account of a Reconstruction-era civil rights program rendered all but meaningless by judicial construction. (33)

    The two cases that will form the basis for this analysis must be viewed within the context of the direction of [section] 1983 jurisprudence. While...

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