The tragic killing of African American George Floyd by Minneapolis police officer Derek Chauvin placed in focus serious deficiencies in §1983 excessive force law. The Supreme Court’s jurisprudence is so heavily tilted in favor of police officers and municipalities sued under §1983 that excessive force claimants often do not have a realistic chance of recovery.
Chauvin killed Floyd by placing his knee on Floyd’s neck for almost nine minutes. Floyd was suspected of passing a counterfeit $20 bill to pay for cigarettes. A videotape shows that Floyd was not resisting and presented no threat to Chauvin. Three other officers at the scene failed to intervene to protect Floyd from Chauvin’s infliction of deadly force. The incident sparked nationwide protests of police uses of deadly force and racism in law enforcement and criminal justice systems. All four officers were fired. The state filed homicide charges against Chauvin and aiding and abetting charges against the other three officers.
This was not an isolated incident. The senseless killing of George Floyd evoked memories of other unjustified police uses of deadly force: Michael Brown in Ferguson, Mo.; Freddie Gray in Baltimore, Md.; and Eric Garner and Amadu Dialo in New York City. A police officer choked Eric Garner to death even though he was suspected only of selling loose cigarettes. Four police officers fired 41 shots killing Amadou Diallo, a 23-year-old immigrant with no criminal record whom the police thought had a gun but in fact was unarmed.
A N.Y. Times editorial appearing shortly after the police killing of Mr. Floyd charged that the U.S. Supreme Court “has enabled a culture of [police] violence and abuse by eviscerating [§1983] to provide police officers [with] nearly limitless immunity” for their official actions. How Cops Get Away With Murder, May 30, 2020, p. A26 col. 1. The editorial explains how qualified immunity has been employed by the Supreme Court and lower courts to deprive victims of police use of excessive force of a meaningful civil rights damages remedy.
The editorial is correct that the Supreme Court has been part of the problem. But it does not provide a complete explanation of how qualified immunity operates in excessive force cases. Furthermore, the editorial fails to explain how the Supreme Court has denied excessive force claimants a meaningful remedy against the municipality that employed the officers. It is the combined operation of the Supreme Court’s vigorous enforcement of qualified immunity and the lack of a meaningful municipal liability remedy that stacks the deck so heavily against §1983 excessive force claimants.
This Supreme Court’s §1983 Fourth Amendment excessive force jurisprudence starts with the decision in Tennessee v. Garner, 471 U.S. 1 (1985) that police use of deadly force violates the Fourth Amendment prohibition against unreasonable seizures unless the suspect poses a threat of death or serious harm to the officer or others. In Graham v. Connor, 490 U.S. 386 (1989), the court held that all police uses of force, deadly or otherwise, that occur in the course of an arrest, investigatory stop, or other seizure, are governed by an objective reasonableness standard. See also Scott v. Harris, 550 U.S. 372, 382 (2007) (“Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment ‘reasonableness’ test … to the use of a particular type of force in a particular situation.”). The circuit courts consistently hold that “standby officers” who have a realistic opportunity to intervene to prevent unreasonable use of force can be held liable for their failure to do so. See, e.g., Anderson v. Brennan, 17 F.3d 552 (2d Cir. 1994).
The issue under Graham is whether the officer used force that an objectively reasonable officer could have employed under the circumstances. The court in Graham detailed some of the relevant circumstances in determining the reasonableness of an officer’s use of force: (1) the seriousness of the crime at issue; (2) whether the suspect is actively resisting arrest or attempting to flee; and (3) most importantly, whether the suspect poses an immediate threat to the safety of the officer or others. There is a major unresolved issue in the Supreme Court as to whether an individual’s mental illness should be considered in the reasonableness equation. Some circuit court decisions hold that use of force against an individual whom the officer knows or reasonably should know is suffering from a mental illness should not be evaluated in the same way as use of force to apprehend a person suspected of serious criminal wrongdoing. See, e.g., King v. Hendricks County Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020); Chamberlain v. City of White Plains, 2020 WL 2820176 (2d Cir. May 29,2020); Tom McParland, 2nd Circuit Rejects Qualified Immunity in Lawsuit Over Shooting of Mentally Ill Man, NYLJ, p.1 (June 2, 2020).
The court in Graham said that the reasonableness of an officer’s use of force “must be evaluated from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” 490 U.S. at 396. Graham instructed courts to defer to the judgment of the officer because police officers are often forced to make split-second judgments about the use of force in tense, rapidly evolving circumstances. 490 U.S. at 396-97. That seems logical enough. It may be questioned, however, whether less deference should be given to the officer in deadly force cases than when non-deadly force is used. Deadly force is force carrying a substantial risk of causing death or serious injury. Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998).
The Second Circuit holds that in deadly force cases a general Graham instruction will not suffice; the district court must give the jury a special Garner instruction that deadly force may not be employed unless the suspect poses an immediate risk of death or serious injury to the officer or others. Callahan v. Wilson, 863 F.3d 144 (2d Cir. 2017), cert. denied, 138 S. Ct. 1261 (2018); Rasanen v. Doe, 723 F. 3d 325 (2d Cir. 2013). When the use of deadly force is fatal, several circuit court decisions hold that, because the suspect is not available to counter what may be the officer’s self-serving version of the incident, a court should examine the summary judgment evidence, such as medical reports, officers’ statements, and available physical evidence, with special care “‘to determine if the officer’s story is internally consistent and consistent with other known facts.’” Estate of Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017) (cleaned up), cert. denied, 138 S. Ct. 2080 (2018). See also King v. Hendricks County Comm’rs, 954 F.3d at 985.
One would think that the Graham deferential Fourth Amendment reasonableness standard gives police officers ample protection against charges of excessive force. But there is more, which gets us to the heart of the problem with the Supreme Court’s excessive force jurisprudence. The Supreme Court holds that even though Fourth Amendment excessive force claims are governed by an objective reasonableness standard, they are subject to the defense of qualified immunity, which is also governed by an objective reasonableness standard. Saucier v. Katz, 533 U.S. 194 (2011). Qualified immunity protects state and local law enforcement officers from monetary liability for their unconstitutional actions if the officer acted in an objectively reasonable manner. An officer acts in an objectively reasonable manner if she did not violate the plaintiff’s clearly established constitutional rights. In other words, even though an officer’s use of force was unreasonable under the Fourth Amendment, it will be considered reasonable under qualified immunity if the use of force under the particular circumstances did not violate clearly established Fourth Amendment law. Qualified immunity protects an officer’s reasonable mistakes about the legality of the use of force “in the hazy border between excessive and reasonable force.” Mullenix v. Luna, 136 S.Ct. 305, 312 (2015) (per curiam).
The Supreme Court has enforced qualified immunity vigorously in Fourth Amendment cases, despite extensive judicial and academic criticism. The court consistently states that the pertinent inquiry is whether “every reasonable officer” would know that his or her conduct violates clearly established federal law. See, e.g., Mullenix v. Luna, 136 S. Ct. at 308. The court states that while there need not be “a case directly on point for the law to be clearly established, existing precedent must have placed the … . constitutional question beyond debate.” See, e.g., Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per curiam); White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam). Query whether there is a meaningful distinction between “case directly on point” and precedent placing the constitutional question “beyond debate.” The court has left open the possibility that there may be the rare “obvious” case where there is no conceivable argument that the use of force was unreasonable even in the absence of controlling specific precedent. See White, 137 S.Ct. at 552.
The Supreme Court mandates that qualified immunity be evaluated at a high level of specificity, and not with respect to general constitutional principles, such as “the Fourth Amendment prohibits unreasonable force.” This means that whether the law was clearly established must be considered with respect to the specific facts and legal issues of the case before the court. The Supreme Court considers this high level of specificity especially important in Fourth Amendment excessive force cases because the law may not always give law enforcement officers clear guidance as to what police conduct is allowed in the particular circumstances confronting the officer. See, e.g., Kisela v. Hughes, 138 S. Ct. at 1152-53.
A court faced with a qualified immunity defense has discretion to either first decide the constitutional merits before tackling the clearly established federal law immunity issue, or, alternatively, to procced directly to the clearly established federal law issue. Pearson v. Callahan, 555 U.S. 223 (2009).
A police officer sued for excessive use of force alleged to violate the Fourth Amendment is effectively given two levels of reasonableness protection, one under the deferential Fourth Amendment reasonableness standard, and the other under qualified immunity. In the author’s view, while the first level of reasonableness protection is warranted, the second level is excessive and unnecessary. This “double deference” stacks the deck against §1983 plaintiffs, imposing burdens they can rarely meet.
In excessive force cases, the Supreme Court has consistently ruled in favor of the officer on the basis of qualified immunity. See Kisela v. Hughes, 138 S.Ct. 1148 (2018) (per curiam); White v. Pauly, 137 S. Ct. 548 (2017) (per curiam); Mullenix v. Luna, 136 S. Ct. 325 (2015); City and County of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015); Plumhoff v. Rickard, 572 U.S. 765 (2014); Brosseau v. Haugen, 543 U.S. 194 (2014) (per curiam). The N.Y. Times editorial referenced a recent Reuters study concluding that “since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases.” See Andrea Januta and Jackie Botts, Taking the Measure of Qualified Immunity: How Reuters Analyzed the Data, www.reuters.com (May 8, 2020). Justice Sotomayor in dissent has criticized the court for effectively giving officers accused of excessive force an “absolute shield” from liability, thereby “gutting the deterrent effect of the Fourth Amendment.” Kissela v. Hughes, 138 S.Ct. at 1162 (Sotomayor, J., dissenting).
Affording the officer a strong qualified immunity defense might be less objectionable if §1983 law provided a meaningful remedy against municipalities that employ officers who act unconstitutionally. But here, too, the law has failed §1983 excessive force claimants. Unlike the common law of torts, there is no respondeat superior liability under §1983. Each defendant may be held liable only for his, her, or its own wrongdoing. This means that §1983 municipal liability may be imposed only if the violation of the plaintiff’s federally protected rights is attributable to the enforcement of a municipal policy or practice. Monell v. NYC Dep’t of Soc. Servs., 436 U.S. 658 (1978).
In §1983 litigation generally, and §1983 excessive force litigation in particular, it is typically very difficult for plaintiffs to establish municipal liability. Section 1983 municipal liability may be based on a formally adopted policy in an ordinance or regulation. But municipal officials are not so foolish as to adopt express policies authorizing its law enforcement officers to inflict excessive force. Section 1983 municipal liability may also be based upon an unwritten custom or practice having the force of law. This requires the plaintiff to show that the practice was so widespread and persistent that municipal policymakers were aware or should have been aware of it. If the plaintiff can get past the pleading stage, this fact intensive claim will likely require extensive investigation and discovery, be very costly to litigate, and difficult to win. The bottom line is that relatively few decisions have imposed §1983 municipal liability on the basis of a custom or practice of police use of excessive force.
In real life terms the root cause of an officer’s use of excessive force may be traceable to inadequacies in training and supervision. Section 1983 municipal liability claims may be based upon a municipality’s deliberately indifferent training or supervision. But the Supreme Court holds that to establish municipal liability based on inadequate training, as a strong general rule, deliberate indifference requires the plaintiff to identify a specific training deficiency and a pattern of very similar constitutional violations of which municipal policymakers were aware or should have been aware. Connick v. Thompson, 563 U.S. 51 (2011); City of Canton v. Harris, 489 U.S. 378 (1989). In addition, the plaintiff must show that the deliberately inadequate training is “closely related” to the violation of the plaintiff’s federal constitutional rights. The Supreme Court accurately describes the “deliberate indifference” fault and “closely related” causation standards as “stringent”, Connick, 563 U.S. at 1360, and, in practice, relatively few plaintiffs are able to satisfy them.
The lower courts apply the same standards to §1983 municipal liability claims based on inadequate supervision. There is circuit court authority that an inadequate supervision municipal liability claim may be premised upon a municipality’s failure to have a meaningful civilian complaint review procedure. See, e.g., Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), cert. denied, 519 U.S. 1151 (1997); Van v. City of New York, 72 F.3d 104 (2d Cir. 1995). In Minneapolis, since 2012 there were over 2,600 complaints against police officers and only 12 resulted in the officer being disciplined. Dan Frosch et al., A Chief Promised Change. A Death Shows Hurdles, Wall Street Journal (June 1, 2020). There were reportedly 18 complaints against officer Chauvin but only two resulted in discipline.
Policing is hard work and, as the N.Y. Times editorial recognizes, “[t]he vast majority of police officers are decent, honest men and women who do some of society’s most dangerous work.” But there are some officers who shouldn’t have been hired in the first place or, if hired, given limited responsibilities and not equipped with weapons. In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), the Supreme Court held that §1983 municipal liability can be premised upon deliberately indifferent screening in hiring a law enforcement officer. The deliberate indifference must be closely related to the deprivation of the plaintiff’s federally protected rights.
In Brown, Sherriff Moore hired Burns, the son of his nephew, despite Burns’s extensive record of driving infractions and misdemeanor convictions for assault and battery, resisting arrest, and public drunkenness. Sherriff Moore authorized Burns to make arrests, but not carry a weapon or operate a patrol car. The plaintiff alleged that Burns used excessive force in arresting her, causing serious injuries. The court held that the County was not held liable for Burns’s use of excessive force. “Only where adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party’s federally protected right can the official’s failure to adequately scrutinize the applicant’s background constitute ‘deliberate indifference.’” Burns, 520 U.S. at 411. More specifically, to impose municipal liability there must be evidence from which a reasonable jury could conclude that Sheriff Burns’s use of excessive force was a “plainly obvious” consequence of the inadequately screened hiring decision. Brown, 520 U.S. at 412. As with municipal liability training and supervision claims, the fault and causation standards for inadequate hiring claims are so “stringent”, Brown, 563 U.S. at 1360, that few plaintiffs are able to satisfy them.
Looking at the whole picture, the plaintiff’s §1983 remedy against the officer is severely diluted by the Supreme Court’s vigorous enforcement of qualified immunity. The municipal liability remedy is severely diluted by the Supreme Court’s imposition of very stringent fault and causation standards. The combined effect of these two phenomena is to leave §1983 excessive force claimants without an effective remedy.
Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.