By Paul V. Mullin, Esq.
A. STATE LAW CLAIMS vs. MUNICIPALITIES AND THEIR OFFICERS
1. Common law suits against police officers and municipalities are often False Arrest/False Imprisonment:
The requirements are:
a. an intentional confinement;
b. of which the plaintiff is conscious of;
c. to which the plaintiff does not consent;
d. the confinement/arrest is not otherwise privileged (see Guntlow v. Barbera, 76 AD3d (2010), appeal dismissed 15 NY3d 906 (2010); Martinez v. City of Schenectady, 97 NY2d 78, 35 (2001)).
2. Common law actions can also be brought on the basis of Malicious Prosecution:
The requirements are:
a. a criminal proceeding is commenced;
b. the proceeding is terminated in favor of accused;
c. the procedures lacked probable cause;
d. the proceeding was brought out of actual malice (see Cantalino v. Danner, 96 NY2d 391, 394 (2001); Broughton v. State of New York, 37 NY2d 451, 475 (1975)).
3. There are some cases brought as Common Law Assault and Battery:
The requirements are:
a. plaintiff must show defendants intentionally placed plaintiff in apprehension of imminent harmful or offensive contact and did intentionally engage in offensive bodily contact without the plaintiff’s consent (see Goff v. Clarke, 302 AD2d 725, 726 (2003); Bastein v. Sotto, 299 AD2d 432, 433 (2002)).
B. LIABILITY UNDER 42 USC 1983
1. Section 1983 provides for relief for a plaintiff deprived of “rights, privileges, or immunities secured by the constitution and its laws”.
Note the statute is not in itself a source of substantive rights but rather a mechanism for vindicating federal rights elsewhere conferred by the constitution and federal statutes.
2. To state a claim under 42 USC 1983, a plaintiff must allege:
a. a right secured by the constitution or laws of the United States were violated.
b. the right was violated by a person acting under color of state law (see West v. Atkins, 487 US 42 (1998)).
3. The majority of claims arise by allegations that the violation of rights were under the Fourth Amendment or the Eighth Amendment.
a. A Fourth Amendment claim arises when one is not in custody, and claims are judged primarily under an “objective reasonableness standard” (see Graham v. Connor, 490 US 386, 388). This requires a balancing of the intrusion on the Fourth Amendment interests against the counter reeling governmental interests at stake.
This involves considering factors like “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers, or others, and whether he/she is actively resisting arrest or attempting to evade arrest by flight” (see Graham, supra; Tennessee v. Gardner, 475 US 1 (1985)).
b. The Eighth Amendment claim arises when physical force is used to restrain a person being held in custody. It is a violation of the Eighth Amendment when the “measure taken inflicted unnecessary and wanton pain and suffering which turns on whether force was applied in a good faith effect to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm” (see Whitelly v. Albers, 475 US 312, 320-321 (1986) quoting Johnson v. Glick, 481 F2d 1028 (2nd Cir., 1973) cert. denied sub nom John v. Johnson, 414 US 1033 (1973).
4. The Fourth Amendment standard of objective reasonableness is best defined and cited most often by the case of Graham v. Connors, 490 US 386 (1989). It holds “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect (plaintiff) poses an immediate threat to the safety of officers or others and whether his actively resisting arrest or attempting to evade arrest by flight”.
The key concept that Courts are required to apply is that the circumstances must be reviewed in “the perspective of a reasonable officer or the scene rather than 20/20 vision of hindsight” (see Tennessee v. Garner, 475 US (1985).
5. The statute of limitations for actions brought under 42 USC 1983 is governed by CPLR 214(5) which provides a three-year statute of limitations for personal injuries (Owens v. Okure, 488 US 235 (1989); Ormiston v. Nelson, 117 F.3d 69 (2d Cir., 1997)).
C. COMMON LIABILITY CLAIMS, ARE THERE ANY REAL COMMON THEMES?:
1. The state claims of false arrest, assault and battery and malicious prosecution are outlined nicely in the case of Guntlow v. Barbera, (76 AD3d 760 (290) appeal dismissed 15 NY3d 906 (2010). This case involved the arrest of the plaintiff after she gets into an argument with a New York State Trooper’s wife at an American Idol concert on the standard “down in front” argument. Plaintiff gets arrested and is held at station in cuffs until the Idol concert is over, all over a disagreement of who was standing and whether they were in the way.
2. A malicious prosecution case fails when the Justice Court dismisses the case in the interest of justice but after finding that there were probable cause to arrest the lawyer who shoves a police officer away from his secretary/process server at a hospital (Diederich v. Nyack 49 AD3d 491 (2008) app dismissed 11 NY3d 862; Ryan v. New York Tel. Co., 62 NY2d 494, 501-504). The Court’s action in finding probable cause prevents the plaintiff from establishing the absence of probable cause and the claim is barred.
3. The area of excessive force is probably the biggest area of litigation vs. an officer or municipality.
a. the use of deadly force:
The standard that is cited most ... “If a suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape and if feasible, a warning is to be given (Tennessee v. Garner, 471 US 1, (1985).
In Terranova v. State of New York, 676 F.3d 305 (2nd Cir. 2012) plaintiffs discussed the use of a deadly force charge when the police stopped traffic to catch speeding motorcyclists. One cyclist died in the stopping of vehicles. The proper charge for the jury in this motor vehicle case (much different than a shooting case) was instructed to decide whether the force used was objectively reasonable and specified various factors that might affect that determination such as severity of the violation, the threat posed by the party, whether the party attempted to evade the police and what other options were available to the police.
One can consider an officer’s decision to use deadly force and its objectively reasonable only if the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to officers or others (see Nimely v. City of New York, 414 F3d 381, 390 (2nd Cir. 2005); Scott Brothers v. Akshar, ____ F.3d ____ US App. Lexis 13368 decided June 30, 2010 (2nd Cir.)).
The Second Circuit addressed the use of force and the use of pepper spray in Tracey v. Freshwater, 623 F.3d 90 (2nd Cir., 2010). The case arises out of a motor vehicle stop in Tompkins County on a snowy night. The officer stopped the vehicle plaintiff was driving, because the car was not properly cleared off. There are multiple turns of events and eventually the plaintiff is to be arrested for criminal impersonation after a struggle (or slips on snow and ice according to plaintiff). During the struggles either before or after the plaintiff is handcuffed, the officer uses pepper spray on the plaintiff. The Second Circuit holds the use of “pepper spray constitutes a significant degree of force and it should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat”.
Also consider the use of tasers (Eckardt v. City of White Plains, 87 AD3d 1049 (2011). The Court addresses claim of use of taser when allegedly handcuffed. In this case, the officer and municipality failed to eliminate all issues regarding the use of tasers was objectively reasonable (see Rivera v. City of New York, 40 AD3d 334, 341 (2007) quoting Graham v. Connor, 490 US at 396).
The amount of injury the plaintiff alleges becomes a relevant factor to consider in excessive force claims. Although sometimes it is case by case analysis. In Diederich v. Nyack Hospital, 49 AD3d 491 (2008) app dismissed 11 NY3d 862 (2008), the Court found in the absence of injury defendants established officer did not use excessive force in restraining plaintiff and plaintiff failed to present any other evidence (see also Gagliano v. County of Nassau, 31 SD3d 375 (2006). Also consider the argument that a nominal use of force will rarely suffice to state a constitutional claim (see Moody v. Town of Greenburgh, 2012 US Dist. Lexis SDNY, see also Romano v. Howarth, 998 F.2d 101 (2nd Cir., 1993)).
However, consider the claim of Burke v. Cicero Police Department (2010, U.S. Dist. Lexis, 314, 414, NDNY) which discusses the use of handcuffs and the claim “forcibly grabbed my right wrist, pulled it back and handcuffed me” sustaining physical and mental injuries (see also Robinson v. Via, 821 F.2d 913, 923-924 (2nd Cir., 1987); Soares v. Connecticut, 8 F.3d 917, 921 (2nd Cir., 1993)).
A plaintiff will not on the other hand be able to complain a medical condition caused him to resist and therefore the officer’s force was excessive. The plaintiff alleges he was in hypoglycemia unawareness “caused his resistance and chase” (Shirvanion v. State of New York, 64 AD3d 1113 (2009)).
Note that an officer may use reasonable force to overcome the resistance of a plaintiff (refusing to stand up or permit being cuffed) pushing plaintiff on his stomach and pulling arms behind his back (Sullivan v. Gagnier, 225 F.3d 161, 166 (2nd Cir., 2000); Kalfus v. New York Presbyterian Hosp., 2012 US App. Lexis 7451 (2nd Cir., decided April 13, 2012)).
Keep in mind that because of the specific nature of the inquiry, granting summary judgment on an excessive force claim is not appropriate unless no reasonable fact finder could conclude that the officer’s conduct was objectively unreasonable (Barlow v. Male Officer Geneva Police, 434 Fed. Appx 22, 23-24 (2nd Cir., 2011); McMillan v. City of New York, 2001 US Dist. Lexis 1411, 880 decided December 9, 2011 SDNY)). In McMillan, the Court allowed use of force to remove plaintiff from a chaotic scene.
Specific cases on the use of force to consider:
a. Crowell v. Kilmurray, 400 Fed. Appx. 592 (2nd Cir., 2110) approved use of tasers on protestors after they were advised and given the opportunity to comply after each deployment.
b. Accidental shooting in Henry v. Purnell, 652 F.3d 524 (4th Cir., 2011). Officer draws gun and shoots plaintiff instead of drawing stun gun. Court on numerous factors decided officer did not act in an objectionably, reasonable manner. Also, Torres v. City of Madera, 648 F.3d 1119 (9th Cir.) Officer intending to taser occupant of police vehicle mistakenly shoots and kills by drawing her glock instead of taser. After looking at multiple factors officer was using force in an objectively unreasonable manner.
D. SECTION 1983 AND THE MUNICIPALITY
1. Section 1983 claim vs. a municipality is available on limited basis. Plaintiff must show:
a. policy maker knows to a moral certainty that his or her employees will confront a given situation for liability will not arise for rare or unforeseen events (Walker v. City of New York, 974 F.2d 293 (1992)).
b. plaintiff must show that the situation presents an employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.
c. the plaintiff must show that the wrong choice by the employee will frequently cause the deprivation of constitutional rights. (see Holland v. City of Poughkeepsie, 90 AD3d 841 (2011); Canton v. Harris, 499 US 378 (1989)).
d. The municipality can show while the officer was confronted with a difficult choice, it was not a difficult choice of the sort that training or supervision will make less different (Holland, supra; Walker v. City of New York, 974 F.2d 293, 297 (1992) cert. denied 507 US 961 (1993)).
2. A municipality may be found to have a custom that causes a constitutional violation when faced with a pattern of misconduct it does nothing, compelling the conclusion that it has acquiesced in or tacitly authorized its subordinates unlawful actions (Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir., 2007)).
Also municipal liability can be established by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policy makers.
The repeated mishandling of domestic calls could endure failure to train (see Okin v. Village of Cornwall on Hudson Police Dept., 577 F.3d 415 (2d Cir., 2009).
3. Plaintiff in order to show inadequate training, the plaintiff must plead and prove that the municipality’s failure to train its police officers in a relevant respect evidences a deliberate indifference to the rights of its inhabitants. To sustain a claim a plaintiff must demonstrate not only that there is a deficiency in the actor’s training but also the deficiency is identified is closely related to the ultimate injury. (Eckardt v. City of White Plains, 87 AD3d 1049 (2011) citing Canton v. Harris, 489 US 378 (1989)).
Single incident is available “in a narrow range of circumstances where constitutional violations of the kind to which a plaintiff was subjected were the highly predicable consequence of the failure to train. (Connick v. Thompson, ____ US (2011) 131 S. Ct. 1350 2011; McColley v. County of Rensselaer, May 4, 2012, US Dist. Lexis 62905.
E. DEFENSE ISSUES THAT A PRACTITIONER NEEDS TO CONSIDER
1. A municipality may seek dismissal of a tort claim using the argument that there was a lack of a special duty owed to the injured party, beyond that owed to the public at large (Valdez v. City of New York, 18 NY3d 69 (2011).
The second ground a municipality may seek dismissal is defense of governmental function immunity which shields public entities from liability for discriminating actions taken during performance of governmental functions even if plaintiff is otherwise able to establish all the elements of a tort claim including the existence of a duty owed to the injured party (Valdez, supra. see also Bawa v. City of New York, ____ AD3d ___ April 17, 2012 (2d Dept.).
The question of special relationships can be given to the jury if there are material facts in dispute (Velez v. City of New York, 2012 US Dist. Lexis 51820, March 31, 2012 (EDNY).
2. Lack of Personal Involvement:
a. Liability for damages may not be based upon respondent superior or vicarious liability (Muhammad v. Rabinowitz, ____ F.3d ____ decided April 5, 2012, 2d Cir. citing Monell v. Dept. of Social Services, 436 US 658; Farid v. Ellen, 593 F.3d 233 (2d Cir., 2010)).
3. Supervisor Issues:
a. A supervisor may be found personally involved when after learning of the violation, failed to remedy the wrong or he or she created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue or if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event, Wright v. Smith, 21 F.3d 496, 501 (2d Cir., 1994 citing Williams v. Smith, 281 F.2d 319, 3223, 2d, 1986.
Supervisor may also face liability where offender demonstrates “gross negligence” or “deliberate indifference” to the constitutional rights of inmates by failing to act on information indicating constitutional practices are taking place (Wright, 21 F.3d at 501 citing McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir., 1983); Meriwhether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir., 1989)).
4. Claims v. State employees in their official capacities barred as they are deemed to be claims against the State itself and are barred by the Eleventh Amendment (Kentucky v. Graham, 473 US 159, 166 (1985); Dube v. State Univ. of New York, 900 F.2d 587, 594-595 (2d Cir., 1990); Muhammad v. Rabinowitz, ___ F.3d ____, April 5, 2012 (2d Cir., 2012), 2012 U.S. Dist. Lexis 49163)).
See also Brown v. Kopek, 2011 US Dist. Lexis 94766, August 24, 2011 (NDNY) a State official sued in his official capacity for money damages are not considered persons in the context of 1983 Suits, (Will v. Michigan Dept. of State Police, 491 US 58, 71 (1989)).
Under New York State common law when an employee is acting within the scope of his employment the employer may be held liable for employees torts under theory of respondent superior and no claim may proceed for negligent supervision or training under New York common law, Holland v. City of Poughkeepsie, 90 AD3d 841 (2001) (The Section 1983 there is no vicarious liability.)
The weight of authorities hold that a negligent training claim is viable in New York law only when the alleged wrongful training occurs outside the scope of employment. (see Karoon v. New York City Transit Authority, 241 AD2d 323 (1997); Velez v. City of New York, April 12, 2012, 2012 US Dist. Lexis 51820 EDNY)).
5. Immunity Defense
The doctrine of qualified immunity holds that “governmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or unconstitutional rights (Harlow v. Fitzgerald, 457 US 800, 818 (1982)). The right violated is clearly established if it would be clear to reasonable officer that the conduct was unlaw3ful in the situation confronted (see Saucier v. Katz, 533 US 194, 202 (2001)). This inquiry turns on the objective legal reasonableness of the action assessed in the light of the legal rules that were clearly established at the time it was taken (Pearson v. Callahan; Williams v. Wood, 375 Fed. appx. 98 (2d Cir., 2010) Lexis 8900).
The Court analysis of immunity is shown in case where police officer kills his wife and estate brings action against Police Chief and Mayor. The Chief was longtime friend of officer who killed his wife and Mayor appointed Chief who had little experience for the leadership position.
The standard 1) did Mayor’s conduct violate an unconstitutional right and was that right clearly established “that is that it would be clear to reasonable Mayor that his conduct in hiring an unqualified friend as Police Chief was unlawful.” Court looks to complaint and finds allegations are solely to be appointment, not that he knew anything about the behavior and conduct of officer who killed the decedent. Then Court found “appointing cronies of questionable qualifications to important governmental positions and such appointments have not implicated the Fifth or Fourteenth Amendments and as such duty was “not clearly exhibited”, (Pearce v. Labella ____ F.3d _____March 12, 2012 US App. Lexis 5956 (2012).