No. 98-507
In the
Supreme Court of the United States
October Term, 1998
James Snyder, Petitioner,
v.
Sydney Trepagnier, Respondent.
On Writ of Certiorari to
the United States Court of Appeals
for the Fifth Circuit
BRIEF AMICI CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION, THE ACLU OF LOUISIANA, THE NATIONAL LAWYERS GUILD, AND THE CENTER FOR CONTITUTIONAL RIGHTS, IN SUPPORT OF PETITIONER
TABLE OF CONTENTS
TABLE OF AUTHORITIES [as appendix]
THE DETERMINATION THAT A POLICE OFFICER'S USE OF FORCE WAS OBJECTIVELY UNREASONABLE, AND THEREFORE EXCESSIVE UNDER THE FOURTH AMENDMENT, PRECLUDES A DETERMINATION THAT THE OFFICER ACTED IN AN OBJECTIVELY REASONABLE MANNER FOR PURPOSES OF QUALIFIED IMMUNITY
A. Introduction
B. The Fourth Amendment Standard
C. Qualified Immunity Cannot Be A Defense To A Claim Of Excessive Force Under The Fourth Amendment
D. The Jury Instruction On Qualified Immunity In This Case Could Only Have Caused Prejudicial Confusion
INTEREST OF AMICI1
The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with nearly 300,000 members dedicated to the principles of liberty and equality embodied in the Bill of Rights and this nation’s civil rights laws. The ACLU has appeared before this Court on numerous occasions, both as direct counsel and as amicus curiae. The ACLU of Louisiana is one of its statewide affiliates.
Throughout its eighty year history, the ACLU and its affiliates have been involved in numerous cases around the country challenging the use of excessive force by law enforcement officers. The question of whether law enforcement officers found guilty of using excessive force in the performance of their duties are nonetheless entitled to a qualified immunity against damages is therefore a matter of considerable concern to the ACLU and its members.
The National Police Accountability Project of the National Lawyers Guild (NLG) is dedicated to protecting all persons from the unlawful or unconstitutional use of police power. The Project provides information and resources necessary for police misconduct litigation and support for legislative efforts to strengthen remedies for the victims of police abuse.
The Center for Constitutional Rights (CCR) is a progressive law, education, and advocacy organization that is dedicated to the advancement of the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. The Center, which grew out of the civil rights movement in the Deep South in the 1960s, has long been in the forefront of social and economic justice litigation.
Excessive force claims are raised in a very large percentage of the police misconduct cases filed by the clients served by NLG and CCR. Recognition of a qualified immunity defense in excessive force cases would significantly impair the ability of these clients to obtain a meaningful remedy when their constitutional rights are violated. With over twenty-five years of active litigation on this issue, CCR and NLG seek this opportunity to make their views available to the Court.
On July 4, 1992, petitioner James Snyder (Snyder), while unarmed and restrained by the police, was shot in the back by respondent Sidney Trepagnier (Trepagnier), a New Orleans police officer. As a result of the shooting, petitioner was paralyzed from the waist down. Snyder filed suit in federal district court alleging a violation of his Fourth Amendment right to be free from excessive use of force against Trepagnier, his fellow officer Joseph Valiente, the City of New Orleans, and its Mayor and Chief of Police. Snyder also alleged supplemental state law claims of assault and battery.
This incident started when Todd Taylor, who was operating a car in which Snyder was a passenger, failed to heed Trepagnier's attempt to stop him for speeding. 2 Taylor led the police on a high speed chase. At the end of the chase, both Taylor and Snyder ran from their car and attempted to cross a swampy area nearby.
The ensuing events were sharply disputed at trial. According to Snyder, he did not carry a weapon at any time during the chase. Snyder had previously lost his left arm, and he testified that he was carrying sunglasses and cigarettes in his right hand as he ran through the swamp. He further testified that he was quickly overtaken by Trepagnier, who placed his service revolver at Snyder's head and held him to the ground. In an attempt to convince Taylor to stop running, Trepagnier threatened to shoot Snyder unless Taylor surrendered. Eventually, Taylor returned to where Trepagnier was holding Snyder. At this point, Trepagnier asked Snyder why he had run and Snyder responded that he was wanted in Pennsylvania. Trepagnier then shot Snyder in the back at point blank range. When Snyder asked Trepagnier why he had shot him, Trepagnier's response (according to Snyder) was: "The swamp's a hell of a place to die, ain't it?"
Trepagnier offered the jury a very different version of events. He testified that Snyder was armed and fired at him. In addition, Trepagnier claimed that Snyder pointed a blue gun at Trepagnier's chest when Trepagnier caught up with him. Trepagnier then told the jury that he shot Snyder and pushed Snyder's right hand (that allegedly held the gun) into the mud.
If Trepagnier testified truthfully, a gun should have been recovered within inches of where Snyder was shot. In fact, the police conducted an intensive, systematic ("grid pattern") search of the entire area and did not recover any weapon. Moreover, forensics evidence at trial proved that the shooting was at very close range (6-10 inches), and that the trajectory of the bullet after it entered Snyder's back was directly from back to front, thus impeaching Trepagnier's testimony that Snyder was facing and threatening him with his weapon. Conversely, the undisputed testimony regarding the path of the bullet was fully consistent with Snyder's testimony and contradicted Trepagnier's claim that he fired the shot while Snyder was turning his body.
The parties stipulated that the shooting of Snyder was intentional and "not the result of negligence, inadvertedness, mistake, or accident." The central issue for the jury was credibility. The parties agreed that if Trepagnier testified truthfully, the excessive force claim must fail. By the same token, the parties agreed that if Snyder was unarmed, the use of force was clearly unjustified and violated the Fourth Amendment.
Before the verdict, the trial court dismissed all claims except those against Trepagnier and the City. Over petitioner's objection, the court instructed the jury that Trepagnier was entitled to assert the defense of qualified immunity. The jury rendered its verdict in the form of answers to special interrogatories, as follows:
1. Do you find that Officer Sidney Trepagnier deprived James Snyder's [sic] of his constitutional rights by using excessive force in arresting him?
Yes x No
If your answer to question 1 is "yes", continue to the remaining questions. If your answer to question 1 is "no" then sign and date this form and return to the courtroom.
2. Do you find that Officer Sidney Trepagnier had a reasonable belief that his actions would not violate James Snyder's constitutional rights?
Yes x No
3. Do you find that the constitutional deprivation was caused by a governmental custom, policy, practice or decision of the City of New Orleans?
Yes x No
Thus, the jury accepted Trepagnier’s qualified immunity defense despite its finding that he had unconstitutionally used excessive force in arresting Snyder. At the same time, the jury awarded Snyder $1,964,000 against the City for his past and future medical expenses, but did not award any damages for pain and suffering, physical disability, or loss of life's pleasures. On post-trial motions, the trial court rejected the City’s argument that the verdict against it was irreconcilable with the jury’s verdict in favor of Trepagnier on the qualified immunity issue.3 The trial court then granted petitioner's motion for a new trial on damages, finding that no reasonable jury could fail to award damages for the serious pain and suffering. In the words of the district court judge:
It is inconceivable for a jury to find that an individual who has been shot in the back, subjected to multiple operations, hospitalized for several months and [who] will be confined for the rest of his life to a wheelchair endured no pain and suffering and permanent disability.
142 F.3d at 795.
On appeal, the Fifth Circuit reversed the judgment against the City on grounds of insufficiency of the evidence. On the claim against Trepagnier, the court of appeals determined that it was proper to submit the qualified immunity defense to the jury. The court further held that the finding that Trepagnier had violated petitioner’s Fourth Amendment rights by using excessive force was not inconsistent with the jury’s simultaneous finding that Trepagnier was entitled to a qualified immunity defense against damages. As the court explained its reasoning:
The jury's answer that Trepagnier used excessive force apparently was based on its conclusion that Snyder did not actually have a gun. The jury's additional answer that "Trepagnier had a reasonable belief that his actions would not violate [Snyder's] constitutional rights" must have been based on a finding that Trepagnier reasonably believed Snyder had a gun.
Id. at 801.
Judge DeMoss dissented on the qualified immunity issue. In his view, the operative standard for determining both the excessive force claim under the Fourth Amendment and qualified immunity is objective reasonableness and, therefore, qualified immunity is not a separate defense to a Fourth Amendment claim. Accordingly, he concluded that the jury's answers to the first two interrogatories were irreconcilable and that a new trial on liability was required.
A finding that Trepagnier used excessive force in arresting Snyder necessarily involves a determination that the force used by Trepagnier (shooting Snyder in the back at a range of 6 to 10 inches) was "objectively unreasonable." However, absent some lawful justification, no reasonable police officer could reasonably believe that shooting a suspect in the back from a distance of 6 to 10 inches would not violate that individual's constitutional rights. In this case, the jury's answer to interrogatory no. 2 necessarily means that the jury found that Trepagnier reasonably believed that his actions were "objectively reasonable," a finding which is in direct conflict with the opposite finding in interrogatory no. 1.
Id. at 802.
This Court granted the Petition for a Writ of Certiorari to determine whether the court of appeals properly resolved the qualified immunity issue in this case and whether it fairly reconciled the jury’s special interrogatory answers.
The qualified immunity defense is not applicable to claims of excessive force under the Fourth Amendment. The standard for determining whether excessive force has been used in a particular case is identical to the standard for determining whether an officer is entitled to qualified immunity from liability for a Fourth Amendment violation. To prove a Fourth Amendment violation, the plaintiff must demonstrate that the officer acted in an objectively unreasonable manner and, in determining reasonableness, the factfinder must make "allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving." Graham v. Connor, 490 U.S. 386, 397 (1989). As the courts have consistently recognized, the Fourth Amendment itself provides the officer with a wide zone of protection. The officer can use a range of force in response to perceived danger and need not use the least force necessary under the circumstances.
Once it is determined that the force that was used was objectively unreasonable, a defense of qualified immunity is logically inconsistent with the Fourth Amendment determination because it is measured by the same "objective reasonableness" standard. A police officer cannot have an objectively reasonable belief that the force used was necessary (thus entitling him to qualified immunity) when it has already been determined that an objectively reasonable officer could not have believed that the force used was necessary (thus establishing a Fourth Amendment violation). As this case demonstrates, any such findings are inherently irreconcilable.
By contrast, qualified immunity is available in probable cause determinations because of the often difficult legal issues presented in any particular decision to arrest or search. No such difficult legal issues are presented in the excessive force context: the sole question for the officer is whether force is necessary to effect an arrest or other police action, or to defend oneself or others from harm. Given the broad protection the officer has under Graham, no officer who acts unreasonably for Fourth Amendment purposes could be said to act reasonably in terms of qualified immunity.
The jury instructions and special interrogatories in this case could only confuse and mislead the jury. There was only one meaningful factual question for the jury to decide: did Trepagnier testify truthfully when he stated that, although no weapon was found at the site, Snyder in fact had a weapon which he fired point blank at the officer. If Trepagnier was telling the truth, his use of force was objectively reasonable; if not, as the jury determined in response to Interrogatory no. 1, the use was not objectively reasonable. That factual determination was all that was needed to decide this case fairly.
THE DETERMINATION THAT A POLICE OFFICER'S USE OF FORCE WAS OBJECTIVELY UNREASONABLE, AND THEREFORE EXCESSIVE UNDER THE FOURTH AMENDMENT, PRECLUDES A DETERMINATION THAT THE OFFICER ACTED IN AN OBJECTIVELY REASONABLE MANNER FOR PURPOSES OF QUALIFIED IMMUNITY
A. Introduction
Government officers and officials are entitled to a defense of qualified immunity where their alleged unconstitutional conduct "does not violate clearly established . . . constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As this Court has developed and refined the defense, the primary focus is on the "objective reasonableness" of the officer's actions in the light of the legal principles that govern his conduct. See Anderson v. Creighton, 483 U.S. 635 (1987). Where an objectively reasonable officer would not know that his conduct was unconstitutional because the legal standard had not been clearly established at the time or because the contours of the constitutional right did not provide sufficient notice that his conduct was violative of the right asserted, the officer is entitled to the qualified immunity defense. Id. See also United States v. Lanier, 520 U.S. , , 117 S.Ct. 1219, 1227 (1997).
The issue presented by this case is whether this defense should be available in cases where the plaintiff alleges a violation of the Fourth Amendment right to be free from excessive force during an arrest.4 For the reasons set forth below, we submit that the defense of qualified immunity is inconsistent with a determination that an officer acted in an objectively unreasonable manner in his use of force. The legal principle that excessive force violates the Fourth Amendment is clearly established, Graham v. Connor, 490 U.S. 386, and the standards for determining whether force was excessive and for deciding the qualified immunity issue are identical: could an objectively reasonable officer determine that the force used was reasonable and necessary under the circumstances.
B. The Fourth Amendment Standard
In Graham v. Connor, the Court ruled that excessive force claims arising out of arrests, investigatory stops, or other seizures of "free citizens" are properly analyzed under the Fourth Amendment's objective reasonableness standard. The Court stated that reasonableness is to be determined by 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." Id. at 396.
Most significantly, the Court defined "reasonableness" in a manner that gives the officers substantial latitude in determining whether and what type of force can be used. As the Court stated:
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, 392 U.S. at 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested . . . nor by the mistaken execution of a valid search warrant on the wrong premises . . . . With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F.2d at 1033, violates the Fourth Amendment. 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.
Id. at 396-97.
Graham provides officers with a substantial margin of error. Even where post-incident review demonstrates that the force used was unnecessary, there is no Fourth Amendment violation if the officer could have reasonably believed the force used was necessary. Accordingly, once a court or jury has determined that force was excessive, it has of necessity made the judgment -- with "allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving," Id. at 397 -- that no objectively reasonable officer could have thought that the force used was necessary or reasonable under the circumstances.
C. Qualified Immunity Cannot Be A Defense To A Claim Of Excessive Force Under The Fourth Amendment
In the rare situation where the standard for qualified immunity and the constitutional claim are identical, qualified immunity cannot be a defense to a claim of a constitutional violation.5 In the excessive force context, once it is determined that an objectively reasonable officer would not have used the force in question, it makes no sense -- indeed it is conceptually incoherent -- to assert that the very same objectively reasonable officer could have believed that the force was reasonable. In other words, a police officer cannot have an objectively reasonable belief that his conduct was lawful when the unlawfulness of that conduct rests on a determination that an objectively reasonable officer would not have acted in the same way in the same circumstances.
A significant number of lower federal courts have held that the Fourth Amendment and the qualified immunity doctrine pose precisely the same legal issue and that any differing determinations would be legally irreconcilable. See, e.g., Scott v. District of Columbia, 101 F.3d 748 (D.C.Cir. 1996), cert. denied, 117 S.Ct. 1824 (1997); Frazell v. Flanagan, 102 F.3d 877, 886-87 (7th Cir. 1966)("once a jury has determined under the Fourth Amendment that the officer's conduct was objectively unreasonable, that conclusion necessarily resolves for immunity purposes whether a reasonable officer could have believed that his conduct was lawful"); Mick v. Brewer, 76 F.3d 1127 (10th Cir. 1996); Alexander v. County of Los Angeles, 64 F.3d 1315 (9th Cir. 1995); Roy v. City of Lewiston, 42 F.3d 691 (1st Cir. 1994); Street v. Parham, 929 F.2d 537 (10th Cir. 1991); Ramirez v. City of Reno, 925 F.Supp. 681, 687-89 (D.Nev. 1996)("intrinsic analytical incompatibility of an excessive force claim with a qualified immunity claim" given the objective reasonableness test; the "two lines of inquiry converge"); Landy v. Irizarry, 884 F.Supp. 788 (S.D.N.Y. 1995).6
Anderson v. Creighton, 483 U.S. 635, is not to the contrary. In Anderson, this Court ruled that the qualified immunity doctrine is applicable in cases alleging Fourth Amendment violations for searches or arrests without probable cause or exigent circumstances. The Court reasoned that, where an officer is found to have violated the Fourth Amendment by making an arrest or conducting a search without the requisite cause or suspicion, the officer is entitled to the defense of qualified immunity if an objectively reasonable officer could have believed that probable cause existed.
Anderson is premised on the understanding that the "reasonableness" element of probable cause is different from the "objectively reasonable" standard of qualified immunity. That is because probable cause, unlike excessive force, involves a mixed question of fact and law. Moreover, the legal judgments involved in a probable cause determination often require the drawing of fine lines.7 Recognizing that reality, this Court held in Anderson that, given the "difficulty of determining whether particular searches or seizures comport with the Fourth Amendment . . . [l]aw enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable . . . [are entitled to qualified immunity]." Id. at 644 (emphasis added). Thus, in the probable cause context, a police officer might mistakenly violate a citizen’s rights without acting unreasonably. The doctrine of qualified immunity protects such reasonable officers from liability, even though a constitutional violation has taken place.
By contrast, qualified immunity is not required to protect reasonable decisions by police officers accused of using excessive force. The Fourth Amendment already provides them with latitude to determine how much force is reasonably necessary. In many "tense, uncertain and rapidly evolving" situations, reasonable force may comprise a range of options or responses that the officer might employ. Different officers, each behaving reasonably, might elect to use a baton, a chemical agent, a take-down hold, or a different technique; and each might use greater or lesser force, within a reasonable range, in employing the chosen technique.
Furthermore, a number of courts have held that the police are not required to use the least amount of force necessary, as long as the force used was within a range of objectively reasonable options. Forrett v. Richardson, 112 F.3d 416, 420-21 (9th Cir. 1997), cert. denied, 118 S.Ct. 1366 (1998)(shooting violent felony suspect was reasonable even if his capture through other means was inevitable); Scott v. Henrich, 39 F.3d at 915 (reasonable to shoot armed man who confronted police at door); Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir. 1994)(fatal shooting of emotionally disturbed suspect was reasonable); Forrester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir. 1994), cert. denied, 513 U.S. 1152 (1995)(use of "pain compliance techniques" to remove protestors was reasonable); Plakas v. Drinski, 19 F.3d 1143, 1148-49 (7th Cir.), cert. denied, 513 U.S. 820 (1994)(shooting of suspect was reasonable; officers not required to use available alternatives of maintaining distance from suspect with protection of barrier, or using chemical spray).
As these cases demonstrate, even where the officer uses more force than the bare minimum necessary to take someone into custody, his conduct may be objectively reasonable. Accordingly, in each of the cited cases, the court found that there was no Fourth Amendment violation and thus no need to reach the issue of qualified immunity. Moreover, unlike probable cause disputes, there was no need in any of these cases to conclude that the officer was "mistaken" about whether he had committed a constitutional violation. Rather, each of these courts analyzed the facts under Graham and concluded that no constitutional violation had been committed because of the allowance for reasonable force already embodied in the Fourth Amendment.
Recognition that reasonable force may include a range of responses is consistent with this Court’s observation in Graham that "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application." 490 U.S. at 396. Understanding that the Fourth Amendment recognizes a range of forcible responses as reasonable also implements this Court’s injunction in Graham that there be "allowance for the fact that police officers are often forced to make split-second judgments." Id. at 396-97.
How wide the allowance or range may be "requires careful attention to the facts and circumstances of each particular case." Id. at 396. In some cases, the facts and circumstances may be simple enough that the range of permissible options available to the officer will be quite narrow. Indeed, the courts have recognized that in some circumstances no use of force is reasonable if none is required. See Cox v. Treadway, 75 F.3d 230, 234 (6th Cir.), cert. denied, 117 S.Ct. 78 (1996); Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983). In others, the difficulties confronting officers making split-second, life and death decisions may raise sufficient problems that the range of responses that should be deemed reasonable may be quite broad.
The critical point is that this "zone of protection" in use of force cases is provided as part of the Fourth Amendment reasonableness standard itself. And where, as here, the standard for determining qualified immunity is the same as that for deciding the constitutional question itself, the defense is superfluous.
This is not a matter of semantics or linguistic similarity; rather, it is a case of identical doctrine. In determining whether an officer’s use of force was within a range of reasonable options, the jury is also (and necessarily) answering the question whether a reasonable officer "could have believed" his use of force "to be lawful." Anderson v. Creighton, 483 U.S. at 638. Once this question is answered, there is no other inquiry that must be resolved in order to impose liability.8
The doctrinal differences between probable cause and excessive force cases have been recognized by the lower federal courts. See, e.g., Humphrey v. Staszak, 148 F.3d 719 (7th Cir. 1998); Alexander v. County of Los Angeles, 64 F.3d 1315; Guffey v. Wyatt, 18 F.3d 869 (10th Cir. 1994); Street v. Parham, 929 F.2d at 541 n.2 (because of the difficulty of deciding the probable cause issue, the conduct of the officer may be objectively reasonable even if cause did not exist, but in "excessive force cases, once a factfinder has determined that the force used was unnecessary . . . any question of objective reasonableness [is] . . . foreclosed"); Landy v. Irizarry, 884 F.Supp. 788 (S.D.N.Y. 1995); Foote v. Spiegel, 995 F.Supp. 1347, 1353 (D. Utah 1998).9
In Finnegan v. Fountain, 915 F.2d 817, 824 n.11 (2d Cir. 1990), the court made the following pertinent analysis:
In Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990), we made such a distinction between the reasonableness inquiries underlying a Fourth Amendment claim for an arrest without probable cause and qualified immunity. We stated that the probable cause inquiry involved essentially an ex post inquiry, judging reasonableness from the "actual circumstances . . . found as a matter of fact," while the qualified immunity involved an ex ante inquiry, judging reasonableness "from any reasonable point of view, including even a factual misperception, the officer may reasonably have harbored at the time the events took place." Id. at 75. It is questionable whether this same distinction holds up in the context of an excessive-force claim case, because the Supreme Court has made clear that the excessive-force inquiry is not made from an ex post perspective, but from the ex ante "perspective of a reasonable officer on the scene."
D. The Jury Instruction On Qualified Immunity In This Case Could Only Have Caused Prejudicial Confusion
The present case is a good example of the confusion and uncertainty that is caused by the introduction of qualified immunity issues in the litigation of excessive force claims. The pivotal issue for the jury was whether, under the circumstances, respondent Trepagnier had reasonable grounds to believe that petitioner had a pistol and was in a position to harm Trepagnier if he did not first fire his weapon. Because Trepagnier testified that he was certain that Snyder had a weapon -- indeed, that he had fired and then aimed it at him at close range and that the officer actually pushed the weapon into the mud -- the jury’s finding of liability definitively resolved this factual dispute.
A properly instructed jury would have been told to make a finding of excessive force if, under all the circumstances, an objectively reasonable officer, as defined by Graham, could not have believed that the force used was necessary. Had this charge been given, a verdict in favor of petitioner would have necessarily reflected a factual determination that Trepagnier’s version of events was not credible, and that an objectively reasonable officer would not have believed that petitioner was armed or posed a threat to the officer.
In fact, the trial court's instruction to the jury defined the Fourth Amendment standard in a manner that was even more deferential to the officer's decision to use force. The court instructed the jury:
In order to prove that the defendant used excessive force in violation of the Fourth Amendment, the plaintiff must prove by a preponderance of the evidence some harm that resulted directly and only from the use of force that was clearly excessive to the need and the excessiveness of which was objectively unreasonable in light of the facts and circumstances at the time. If the plaintiff fails to prove any one of these elements, you must find for the defendant.
Some of the things you may want to consider in determining whether the defendant used excessive force are:
(1) The relationship between the need and the amount of force used;
(2) The need for the application of force;
(3) The extent of the injury suffered;
(4) The threat reasonably received by the responsible officials; and
(5) Any efforts made to temper the severity of a forceful response.
Injuries which result from, for example, an officer's reasonable use of force to overcome resistance to arrest do not involve constitutionally protected interests. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. The nature of the 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.
This reasonableness inquiry is an objective one. The question is whether the officer's actions are objectively reasonable, in light of the facts and circumstances confronting him, without regard to their underlying intent or motivation.
Trial Tr. 1030-31 (emphasis added).10
The court then gave the disputed "qualified immunity" instruction:
If you find that the plaintiff has proven his claim, you must then consider the defendant's defense; namely, that the defendant, Sidney Trepagnier, acted in good faith and thus is not liable.
. . .
On the other hand, if, after considering the scope of the discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the circumstances of the case as they would have reasonably appeared at the time, you find from a preponderance of the evidence that the defendant, Sidney Trepagnier, had a reasonable and good faith belief that his actions would not violate the plaintiff's constitutional rights, then you cannot find him liable even if the plaintiff's rights were, in fact, violated as a result of the defendant's good faith action.
Id. at 1031-32.
This instruction suffers from two fatal flaws. First, it is not an accurate statement of the law because it mistakenly grounds the qualified immunity defense on the subjective "good faith" of the officer.11 To the degree that qualified immunity is an appropriate defense, the issue is whether an objectively reasonable officer would have acted as the defendant did under all the circumstances, not whether the defendant believed that he was acting reasonably at the time.12 Second, the instruction is inherently confusing. If the jury correctly understood that qualified immunity and excessive force both turn on the question of objective reasonableness, then Interrogatories nos.1 and 2 were legally redundant. On the other hand, if the jury understood the court's instruction on Interrogatory no. 2 to mean that it could uphold the defendant's claim of qualified immunity even if it believed that his use of force was objectively unreasonable, its verdict rests on a fundamental misconception of the law.
In short, this case vividly demonstrates why determinations regarding the use of excessive force should be made solely with reference to Fourth Amendment standards. Qualified immunity is meant to ensure that officers have "fair warning" that their conduct may give rise to liability, States v. Lanier, 117 S.Ct. at 1227. In excessive force cases, that purpose is fully served by the substantive standards embodied in the Fourth Amendment.13
The defense of qualified immunity is irreconcilable with a determination that an officer has violated the Fourth Amendment by use of excessive force. The judgment of the court of appeals should be reversed.
Respectfully submitted,
David Rudovsky
(Counsel of Record)
924 Cherry Street
Philadelphia, Pennsylvania 19107
Steven R. Shapiro
American Civil Liberties Union
Foundation
125 Broad Street
New York, New York 10004
Michael Avery
Suffolk Law School
41 Temple Street
Boston, Massachusetts 02114
William Goodman
Center for Constitutional Rights
666 Broadway
New York, New York 10012
Dated: February 24, 1999
Cases
Alexander v. County of Los Angeles,
64 F.3d 1315 (9th Cir. 1995)
Anderson v. Creighton,
483 U.S. 635 (1987)
Bauer v. Norris,
713 F.2d 408 (8th Cir. 1983)
Beard v. City of Northglenn,
24 F.3d 110 (10th Cir. 1994)
Bivens v. Six Unknown Agents,
456 F.2d 1339 (2d Cir. 1972)
Brandenburg v. Cureton,
882 F.2d 211 (6th Cir. 1989)
Cottrell v. Caldwell,
85 F.3d 1480 (11th Cir. 1996)
County of Sacramento v. Lewis,
523 U.S. , 118 S.Ct. 1708 (1998)
cert. denied, 117 S.Ct. 78 (1996)
Finnegan v. Fountain,
915 F.2d 817 (2d Cir. 1990)
Foote v. Spiegel,
995 F.Supp. 1347 (D. Utah 1998)
Forrester v. City of San Diego,
25 F.3d 804 (9th Cir. 1994),
cert. denied, 513 U.S. 1152 (1995)
Forrett v. Richardson,
112 F.3d 416 (9th Cir. 1997),
cert. denied, 118 S.Ct. 1366 (1998)
Frazell v. Flanagan,
102 F.3d 877 (7th Cir. 1966)
Goodwin v. Circuit Court,
729 F.2d 541 (8th Cir.),
cert. denied, 469 U.S. 828 (1984)
Graham v. Connor,
490 U.S. 386 (1989)
Guffey v. Wyatt,
18 F.3d 869 (10th Cir. 1994)
Hamilton v. Endell,
981 F.2d 1062 (9th Cir. 1992)
Harlow v. Fitzgerald,
457 U.S. 800 (1982)
Harrell v. Decatur County,
41 F.3d 1494 (11th Cir. 1995)
Humphrey v. Staszak,
148 F.3d 719 (7th Cir. 1998)
Landy v. Irizarry,
884 F.Supp. 788 (S.D.N.Y. 1995)
Malley v. Briggs,
475 U.S. 335 (1986)
Menuel v. City of Atlanta,
25 F.3d 990 (11th Cir. 1994)
Mick v. Brewer,
76 F.3d 1127 (10th Cir. 1996)
Munz v. Michael,
28 F.3d 795 (8th Cir. 1994)
Oliveira v. Mayer,
23 F.3d 642 (2d Cir.1994),
cert. denied, 513 U.S. 1076 (1995)
Plakas v. Drinski,
19 F.3d 1143 (7th Cir.),
cert. denied, 513 U.S. 820 (1994)
Ramirez v. City of Reno,
925 F.Supp. 681 (D.Nev. 1996)
Roy v. City of Lewiston,
42 F.3d 691 (1st Cir. 1994)
Scott v. District of Columbia,
101 F.3d 748 (D.C.Cir. 1996),
cert. denied, 117 S.Ct. 1824 (1997)
Scott v. Henrich,
39 F.3d 912 (9th Cir. 1994),
cert. denied, 515 U.S. 1159 (1995)
Slattery v. Rizzo,
939 F.2d 213 (4th Cir. 1991)
Sova v. City of Mt. Pleasant,
142 F.3d 898 (6th Cir. 1998)
Street v. Parham,
929 F.2d 537 (10th Cir. 1991)
Tatro v. Kervin,
41 F.3d 9 (1st Cir. 1994)
United States v. Lanier,
520 U.S. , 117 S.Ct. 1219 (1997)
1Letters of consent to the filing of this brief have been lodged with the Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel for amici states that no counsel for a party authored this brief in whole or in part and no person, other than amici, their members, or their counsel made a monetary contribution to the preparation or submission of this brief.
2Amici’s statement of facts is primarily derived from the decision below. Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998).
3The court reconciled the verdicts with the following explanation:
The city violated §1983 by failing to enact a stress management program. This failure created a group of overstressed police officers, one of whom was Trepagnier. Accordingly, when Trepagnier shot Snyder, he was behaving reasonably -- "as an improperly trained, over-worked and overly stressed officer would be expected to act under those circumstances."
142 F.3d at 795 n.3.
4This issue was left open in Graham v. Connor, 490 U.S. at 399 n.12 (1989).
5In other contexts, qualified immunity may be precluded by the culpability element of the constitutional violation. Thus, where a plaintiff proves deliberate indifference to an inmate's medical needs; sadistic or malicious use of force; or intentional, invidious race or sex discrimination, there can be no qualified immunity. See Munz v. Michael, 28 F.3d 795 (8th Cir. 1994); Hamilton v. Endell, 981 F.2d 1062 (9th Cir. 1992); Goodwin v. Circuit Court, 729 F.2d 541 (8th Cir.), cert. denied, 469 U.S. 828 (1984). See also Beard v. City of Northglenn, 24 F.3d 110 (10th Cir. 1994)(deliberate use of false information in search warrant).
6Other courts have either decided the excessive force issue on qualified immunity grounds, without first deciding the Fourth Amendment issue, or have collapsed analysis of both issues into a single determination. However, in all of these cases, the courts have applied an objectively reasonable standard on the qualified immunity issue that is identical to the test for excessive force set forth in Graham. See, e.g., Sova v. City of Mt. Pleasant, 142 F.3d 898 (6th Cir. 1998); Harrell v. Decatur County, 41 F.3d 1494 (11th Cir. 1995)(en banc); Brandenburg v. Cureton, 882 F.2d 211 (6th Cir. 1989); Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995); Roy v. City of Lewiston, 42 F.3d 691. Of course, given this Court's ruling in County of Sacramento v. Lewis, 523 U.S. , , 118 S.Ct. 1708, 1714 n.5 (1998), it is now clear that courts must first decide whether a constitutional claim is stated and only if the facts establish a violation should the court proceed to the qualified immunity analysis. In the excessive force context, since the two issues are identical, the second step is plainly redundant. Moreover, as we argue below, application of the qualified immunity defense is unnecessary to protect objectively reasonable conduct and can only create confusion at trial. A minority of courts have determined that there is a separate qualified immunity defense in excessive force cases. See, e.g., Oliveira v. Mayer, 23 F.3d 642 (2d Cir.1994), cert. denied, 513 U.S. 1076 (1995); Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991).
7 As the Second Circuit stated in Bivens v. Six Unknown Agents, 456 F.2d 1339, 1348 (2d Cir. 1972)(on remand from Supreme Court), "even learned and experienced jurists have had difficulty in defining the rules that govern probable cause . . . . As he tries to find his way in this thicket, the police officer must not be held to act at his peril."
8 It follows from this analysis that there is no separate qualified immunity inquiry which a trial court must address at the summary judgment stage, on a motion for a verdict as a matter of law, or in connection with post-verdict motions. At such points, it will be appropriate for the court to consider only whether as a matter of law a jury could not find that the defendant's use of force fell outside the range of reasonable options and was constitutionally excessive.
9Malley v. Briggs, 475 U.S. 335 (1986) is consistent with the position we advocate. In Malley, the court rejected a claim by an officer for absolute immunity where an arrest warrant he secured did not satisfy Fourth Amendment probable cause standards. This Court, recognizing that the officer had done exactly what the Fourth Amendment required -- submit his information to a judge for determination on the issue of probable cause -- provided a qualified immunity under which the officer was liable only if no reasonable officer could have thought that the information established probable cause.
10In requiring petitioner to prove that the use of force was "clearly excessive," the court imposed a highly questionable burden of proof. See Tatro v. Kervin, 41 F.3d 9 (1st Cir. 1994)(requiring plaintiff to prove that the force used was "clearly excessive" improperly imposes burden beyond that of preponderance of the evidence).
11This error was aggravated by the wording of jury interrogatory no. 2 which, as Judge DeMoss pointed out in his dissent, "asks whether Trepagnier had a `reasonable belief,' and not whether a `reasonable officer' would believe that his actions would violate Snyder's constitutional rights." 142 F.3d at 802.
12As a threshold matter, whatever qualified immunity issue remained in this case, and we believe there was none, should never have been submitted to the jury. This Court has repeatedly stated that the immunity issue is one of law for the court, to be decided pre-trial. Harlow v. Fitzgerald, 457 U.S. 800; Anderson v. Creighton, 483 U.S. 635. In the unusual case where factual disputes prevent a court from deciding the issue on summary judgment and the case goes to the jury, id. at 646 n.6, any qualified immunity issue that remains should be resolved by the court based on special interrogatories to the jury that are designed to decide any factual disputes. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996).
13We have focused this amicus brief on the applicability of qualified immunity in excessive force cases. The Court also granted certiorari on the question of whether the court of appeals fairly reconciled the apparently inconsistent special jury verdicts. In our view, the verdicts cannot be reconciled in the manner suggested by the court below. Given the clear factual dispute in this case over whether respondent Trepagnier testified truthfully in stating that he observed a gun in Snyder's possession, the response to Interrogatory no. 1 establishes that the jury did not believe him and that no reasonable officer could have believed that Snyder was armed. Thus, the answer to Interrogatory no. 2 is plainly inconsistent. The court below could only speculate as to the reasons for the inconsistent verdicts and we submit that its reasoning is not plausible. One could theorize as to any number of ways to rationalize these clearly irrational verdicts, see p.6, supra, but any attempt is entirely guesswork. The evidence in the case can sustain either the answer to Interrogatory no. 1 or no. 2, but not both. Accordingly, Judge DeMoss was correct in his dissent in viewing the verdicts as irreconcilable and stating that a new trial was necessary.
