E-Newsletter Edition: August 22, 2007
Response Provided By: Jack Ryan, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
Can a police agency that participated in the execution of a warrant have liability under §1983 where an officer from a second agency unreasonably uses deadly force causing injury?
Agency Liability must be based upon some deficient policy; deficient training; failure to properly supervise; or, failure to discipline officers. The deficiency must lead to a foreseeable constitutional injury. In other word, there must be a link between the deficiency and the injury that occurred.i
The lack of policy, procedure or training can form the basis of a Monell claim. A good example is provided in a recent case from the federal district court in Pennsylavania. ii Taylor v. County of Berks provides an example of agency liability for failing to train officers for a specific task. The case revolved around the execution of a search warrant. On May 6, 2000, Ernestine Taylor was looking out the rear window of her home at 319 Moss Street when she observed a squad of police officers approaching her rear door. Recognizing that the officers were about to break down her door, she began yelling that officers were at the wrong house. The officers demanded that she open her door, but by the time she got downstairs the officers had struck the door several times, splintering it. The officer then held Taylor at gunpoint while they began searching the house. The officers left after they received word via the police radio that they had gone to the wrong house and they should have been at 317 Moss Street.
Taylor filed a lawsuit alleging, among other things, that the officers had not been properly trained to verify the location named in the warrant before forcing entry into a home. The city sought to be dismissed from the lawsuit arguing that Taylor could not prove that the city had a policy or practice of knocking down the doors of incorrect houses. The court asserted that the city had failed to address Taylor’s failure to train allegation. In its review, the court noted that the department’s policy made “no mention of a requirement that, or a procedure by which, officers verify that they are at the correct location before doing damage to a home… Given that Berks County officers perform raids in backyards of row-houses where there are not numbers and where it is easy to mistake one home from another, a reasonable jury could conclude that the [city’s] failure to train its officers to verify their location constitutes deliberate indifference as to whether the officers violate citizen’s rights by entering their homes illegally.
This case has very specific application to the issue in this case since a viable theory of liability is that neither police agency had a policy or procedure, or training for that matter, on investigating and verifying who may occupy a dwelling where they plan on executing a warrant. The failure to investigate and verify such issues leads to the foreseeable consequence that an officer could be confronted with a third, unexpected person in the dwelling and be startled by that person.
Having established a theory of liability under Monell, the lack of policy, procedure or training on the proper methods of executing a warrant, one must look to how the jurisdiction will analyze “pre-seizure” conduct. In other words, did the lack of preparation for the execution of the search warrant foreseeably lead to the use of deadly force and will the jurisdiction in which the case is brought consider “pre-seizure” conduct as part of the “totality of circumstances” in the use of force analysis.
The foundation case in the United States court of Appeal for the 3rd Circuit is Abraham v. Raso.iii The case involved an off-duty police officer who was working an off-duty security detail at a retail shopping mall. The officer, Kimberly Raso of the Cherry Hill Police Department was called by mall personnel in regards to subjects, one of whom was Robert Abraham, who were stealing clothing from the mall’s Macy’s store.
Officer Raso, accompanied by mall personnel and another off-duty officer followed the suspects to the mall’s parking area. A security camera in the parking area showed the officers and the mall personnel walking toward the two individuals and further showed that there were open spaces next to Abraham’s parked vehicle.
Robert Abraham, who was being ordered to stop by Officer Raso reached his vehicle and got in. At that point the video equipment did an automatic switch to another location, ending the video of the incident. According to Raso and the witnesses, Abraham drove in reverse from his parking space and struck another parked vehicle. According to some witnesses, Officer Raso then moved in front of Abraham’s vehicle and ordered him several times to stop. When Abraham drove forward, Officer Raso shot and ultimately killed Abraham. It should be noted that the witnesses were inconsistent on where Raso was standing and how Abraham drove toward her. Such inconsistency is not unusual in such a split-second shooting case. The plaintiffs alleged that Raso was never in the path of the vehicle and instead alleging that Raso shot at Abraham from the side of his vehicle as he attempted to flee.
In considering a summary judgment motion, the court focused on Abraham’s conduct before he “allegedly accelerated toward Raso…” Before its analysis the court asserted: “Before describing those disputes, however, we want to express our disagreement with those courts which have held that analysis of `reasonableness’ under the Fourth Amendment requires excluding any evidence of events preceding the actual ‘seizure’.” iv
The court asserted: “We are not saying, of course, that all preceding events are equally important, or even of equal importance. Some events may have too attenuated a connection to the officer’s use of force. But what makes these prior events of no consequence [where such is the case] are ordinary ideas of causation, not doctrine about when the seizure occurred.”
The court went on to state: “We reject the reasoning of Bone, Carter and Bella because we do not see how these cases can reconcile the Supreme Court’s rule requiring examination of the `totality of circumstances’ with a rigid rule that excludes all context and causes prior to the moment the seizure is finally accomplished.” ‘Totality’ is an encompassing word. It implies that reasonableness should be sensitive to all the factors bearing on the officer’s use of force.
In applying its interpretation to the shooting of Abraham, the court noted that the pursuit of Abraham in the parking lot was “measured, not frantic.” “Even assuming Raso was in front of the car and was in danger at some point, a jury could find, notwithstanding her testimony that she did not fire until it was no longer objectively reasonable for her to believe she was in peril. A passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect … We can, of course, readily imagine circumstances where a fleeing suspect would have posed such a dire threat to an officer, thereby demonstrating that the suspect posed a serious threat to others, that the officer could justifiably use deadly force to stop the suspect’s flight even after the officer escaped harm’s way. But, in our case, if the jury decides that Raso did not fire until safely out of harm’s way, the jury could also reasonably decide that Abraham’s conduct was not so dangerous as to warrant Raso’s use of deadly force.”
The 3rd Circuit is among a minority that takes a fairly broad view of “pre-seizure” conduct. In viewing the courts language on causation, it seems that a fairly strong argument can be made that the failure to properly investigate and plan for the execution of the warrant was a cause-in-fact of the use of deadly force.
Duty to Intervene
A second possible theory of liability is the duty of all officers to intervene in the unconstitutional conduct of other officers. Generally stated, the officers must have an opportunity to intervene. In this case, there would have to be some pre-shooting conduct, known to officers of the Bristol Township, that they could have intervened in, which would have prevented the shooting. Theoretically it could be argued, at least at the summary judgment stage, that any reasonable officer would have had an obligation to intervene at the point that they were asked to participate in a search warrant execution without proper planning, intelligence etc. It may even be argued that due diligence on the part of Bristol Township officers would have required them to make an inquiry before participating in the warrant execution.
Two recent cases discussing how an officer react when he or she observes a colleague commit an act of excessive force in his or her presence would also apply to any observation of unconstitutional conduct. These two cases make clear that officers who have an opportunity to intervene in an excessive use of force must do so, or risk personal liability for a civil rights violation based upon their failure to intervene. The same principles would apply to any conduct violating constitutional principles.
Samuels v. Cunningham et al,v involved an apprehension by four detectives of the Wilmington DE, Police Department. The four detectives had approached Samuels who was leaning into the window of an automobile; as they did so, both the auto and Samuels fled. Samuels was apprehended by the four detectives and handcuffed. After he was handcuffed, a fifth detective, Detective Hall ran up and allegedly punched Samuels in the ribs. Samuels was transported to the hospital and treated for a fractured rib.
Samuels filed suit against the detective who punched him as well as the other detectives who were present when he was punched. His allegation against the four detectives who were merely present was based upon their failure to intervene in the conduct of their colleague. The detectives and the City of Wilmington sought a dismissal of the suit.
In reviewing the case the court noted the sequence of events and concluded that the four detectives had no reasonable opportunity to intervene in the punch since it was a single punch and there simply was no way for the four detectives who had apprehended Samuels to anticipate that Detective Hall would punch the handcuffed suspect. The court also dismissed claims against the City of Wilmington. The claims against Detective Hall, who allegedly threw the punch, were allowed to proceed to trial.
The second case, decided September 30th 2003, found that the law with respect to officers who have an opportunity to intercede in excessive force is clearly established and may create liability for officers who fail to do so.vi
Jones was a passenger in a vehicle that was stopped following a phony car-jacking call to the police. Officer Nichols and Rodriguez of the Hartford CT. Police Department approached the driver, Easterling, while Officer Murtha approached Jones.
After Jones was taken from the car, he protested that he had done nothing wrong. Officer Murtha then allegedly threw Jones to the ground and kicked him several times, including kicks to the face that caused a bloody lip. Murtha then picked Jones up from the ground, kneed him in the groin several times and then ripped his pants off him. It should be noted that the officers acknowledged Jones’ bloody lip and ripped-off pants.
The court found that Officer Nichols and Rodriguez had no opportunity to intervene in the kicks, but had opportunity to intervene in the other acts allegedly committed by Murtha.
In refusing to dismiss claims against Rodriguez and Nichols the court asserted: “Police officers have an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in their presence by other officers.” Officers who fail to intervene may be liable for the harm caused by their colleagues.
As the facts develop with respect to Bristol Township officers, there may be a valid basis for concluding that these officers had opportunities to intervene at various points during the operation when they observed generally accepted police practices being violated that could lead to foreseeable constitutional violations.
Task Force Liability Theory
Quite often law enforcement agencies enter formalized task forces which brings the resources of more than one agency together. In lawsuits resulting from task force operations, agencies belonging to the task force share liability – notwithstanding the fact that the officer whose conduct is questioned is an officer of only one of the member agencies.vii
In Silberberg v. Lynberg, the United States District Court in Connecticut considered alleged failures in the investigation and arrest of the plaintiff by the “Valley Street Crime Unit.” The plaintiff, Silberberg alleged an unreasonable seizure/false arrest.
While the facts of the case are not pertinent to the issues in this case, the court’s response to one of the towns’ defenses does have application. “Several of the town defendants have argued that because no officer from that particular department were involved in the arrest or prosecution of Silberberg, the town can not be liable. However, the towns, as the real parties in interest, may be liable for any unlawful actions taken by the Valley Street Crime Units.
It seems that a theory of liability with respect to the Bristol Township may be that these departments were on a joint operation. Although, not a formal task force, there was a meeting and an informal agreement to participate jointly in the execution of the search warrant.
A state court case from Louisiana involving the death of an informant also provides some language supporting this theory. viii In Wellman, an informant of the Beauregard Parish Drug Task Force, Ernest Prater, was shot and killed by persons who he was set to inform on. The claim alleged that task force members had allowed information regarding Prater’s status as an informant to leak out providing the motive for his murder.
In examining the liability of the various agencies who were members of the task force, the court asserted: “As the task force was a joint venture between the DeRidder City Police Department and the Beauregard parish Sheriff’s Office, the alleged negligent acts and omissions of the Task Force members determine liability for both of these defendants. Plaintiff was required to prove by a preponderance of the evidence that conduct of an employee of the DeRidder City Police Department OR the Beauregard Parish Sheriff’s Office was a breach of the duty owed to Prater and a substantial factor in causing Prater’s death.” (emphasis added).
In the case at issue, it may be concluded that the Bristol Township and Middleton were on a joint venture notwithstanding the lack of a formalized written agreement. This may be strengthened if there is evidence on discovery regarding a regular relationship between the agencies on this type of operation. This may be a strong argument to get by summary judgment since agencies are not entitled to qualified immunity and this theory focuses on agency liability resulting from joint operations and not on the specific “pre-seizure” conduct that a court may conclude it too attenuated from the ultimate use of force.
See, generally: Monell v. Department of Social Services of New York, 436 U.S. 658 (1978).
Taylor v. County of Berks, 2003 U.S. Dist. LEXIS 23699 (E.D. PA. 2003).
Abraham v. Raso, 183 F. 3d 279 (3rd Cir. 1999).
Citing: Cole v. Bone, 993 F. 2d 1328, 1333 (8th Cir. 1993) (“we scrutinize only the seizure itself, not the events leading to the seizure”); Carter v. Buscher, 973 F. 2d 1328, 1332 (7th Cir. 1992) (“pre-seizure conduct is not subject to Fourth Amendment scrutiny.”); Bella v. Chamberlain, 24 F. 3d 1251, 1256 (10th Cir. 1994).
Samuels v. Cunningham, et al., 2003 U.S. Dist. Lexis 14479 (Dist. Del. 2003).
Jones v. City of Hartford, 2003 U.S. Dist. LEXIS 17340 (Dist. Ct. 2003).
See e.g. Silberberg v. Lynberg, 186 F. Supp. 2d 157 (Dist. Ct. 2002).
See, Wellman v. Evans, 876 So. 2d 954 (Ct. App. LA 3rd Cir. 2004).