1. Copyright © Allyn & Bacon 2007 Chapter 2 Remedies for Constitutional Violations

2. Copyright © Allyn & Bacon 2007 Introduction: Remedies for Constitutional Rights Violations A remedy is a method of rectifying wrongdoing Extralegal remedies are those conducted outside the legal process (e.g., vigilantism) Legal remedies are made available by law, court decisions, or police agency policies and procedures This chapter focuses on legal remedies The most common remedy in criminal procedure is the exclusionary rule Others are lawsuits, complaints, and prosecution

3. Copyright © Allyn & Bacon 2007 I. CIVIL REMEDIES Civil remedies are lawsuits Damage suits=lawsuits where $ is sought Injunctive relief=lawsuits where one seeks to bring injurious action to a halt

4. Copyright © Allyn & Bacon 2007 A. 42 U.S.C. Section 1983: Liability of State Officials 42 U.S.C. Section 1983 (a.k.a. Section 1983) is a statute providing for liability of government officials Section 1983 enjoyed a resurgence in Monroe v. Pape (1961)

5. Copyright © Allyn & Bacon 2007 1. Color of Law Defendant must act under color of law for a Section 1983 claim to succeed Color of law applies when a police officer: Identifies himself or herself as an officer Performs criminal investigations Files official police documents Makes an arrest Invokes police powers Settles personal vendettas with police power Displays weapons or police equipment

6. Copyright © Allyn & Bacon 2007 2. Constitutional Violation Defendant must commit a constitutional violation for a Section 1983 lawsuit to succeed A specific constitutional provision must be violated (e.g., the Fourth Amendment) Culpability is also necessary

7. Copyright © Allyn & Bacon 2007 3. Theories of Liability Supervisory liability An affirmative link is necessary Municipal/county liability Policy or custom Failure to train Individual liability Most Section 1983 lawsuits against police officers invoke the Fourth and/or Fourteenth Amendments Different culpability standards exist for the Fourth Amendment and for Fourteenth Amendment substantive and procedural due process

8. Copyright © Allyn & Bacon 2007 B. Bivens Claims against Federal Officials In Bivens v. Six Unknown Named Agents (1971), the Supreme Court held that federal officers can be sued under Section 1983 Bivens is limited to federal law enforcement officers Other federal officials enjoy absolute immunity

9. Copyright © Allyn & Bacon 2007 C. Defenses to Section 1983 Liability Two defenses to Section 1983 liability exist: Sovereign immunity Qualified immunity

10. Copyright © Allyn & Bacon 2007 1. Sovereign Immunity The 11 th Amendment protects states and state officials in their official capacity Lawsuits against other government employees and lower-level units of government are acceptable 11 th Amendment only limits jurisdiction of the federal courts

11. Copyright © Allyn & Bacon 2007 2. Qualified Immunity A judicially-created defense Objective reasonableness standard used Qualified immunity does not apply if a defendant violates a clearly established right of which a reasonable person would have known (Harlow v. Fitzgerald, 1982)

12. Copyright © Allyn & Bacon 2007 D. State Tort Liability Applies when Section 1983 does not Intentional torts require intent to cause injury or damage Negligence torts are more common and require showing: Legal duty Breach of duty Proximate causation Actual damage or injury

13. Copyright © Allyn & Bacon 2007 1. Defenses against State Tort Liability Officers sued under state tort law are protected from the “public duty doctrine”: Police protection is owed to the public, not individuals Contributory negligence Officer shows plaintiff contributed Comparative negligence Who is to blame? Assumption of risk Plaintiff assumed risk Sudden peril Split-second decisions are necessary

14. Copyright © Allyn & Bacon 2007 II. CRIMINAL REMEDIES Federal and state statutes provide remedies for police misconduct Most laws that apply to ordinary citizens also apply to police officers

15. Copyright © Allyn & Bacon 2007 A. Federal Law 18 U.S.C Section 242 is to criminal liability what Section 1983 is to civil liability Other federal statutes exist as well

16. Copyright © Allyn & Bacon 2007 B. State Law Criminal liability can extend to police officers for almost any offense Police officers enjoy immunity from criminal liability for some “law violations” if they are committed justifiably as part of their duties (e.g., justifiable shooting)

17. Copyright © Allyn & Bacon 2007 III. NONJUDICIAL REMEDIES Three nonjudicial remedies can be identified: Internal review Civilian review Mediation

18. Copyright © Allyn & Bacon 2007 A. Internal Review Police departments review complaints internally Internal affairs falls into this category

19. Copyright © Allyn & Bacon 2007 B. Civilian Review Citizens are involved in reviewing complaints of misconduct

20. Copyright © Allyn & Bacon 2007 1. Varieties of Civilian Review There are three identified forms of civilian review Civilian review (strongest) Civilian input (middle) Civilian monitor (weakest)

21. Copyright © Allyn & Bacon 2007 C. Mediation An objective third-party resolves grievances between police and complainants Ombudsman system fits here

22. Copyright © Allyn & Bacon 2007 IV. THE EXCLUSIONARY RULE A rule of exclusion Provides that evidence obtained in violation of the Constitution cannot be used in a criminal proceeding to prove guilt Found nowhere in the Constitution

23. Copyright © Allyn & Bacon 2007 A. The Rule and Its History Rule first recognized in Boyd v. United States (1886) and Weeks v. United States (1914) In Silverthorne Lumber Co. v. United States (1920), the Court recognized that the Fourth Amendment is a sham without an enforcement mechanism Elkins v. United States (1960) scrapped the silver platter doctrine Permitted use of evidence in federal court that had been obtained illegally by state officials Rule applied to the states in Mapp v. Ohio (1961)

24. Copyright © Allyn & Bacon 2007 1. Applicability of the Rule beyond the Fourth Amendment There is debate about the scope of the exclusionary rule The perspective taken here is that it applies not only to the Fourth Amendment, but the Fifth, Sixth, and others

25. Copyright © Allyn & Bacon 2007 2. Arguments for and against the Rule Critics believe that the rule: Does not deter misconduct Excludes reliable evidence Rule creates public cynicism Rule punishes innocent citizens Should be abandoned in favor of other remedies Supporters believe that the rule: Deters misconduct Is rarely applied Is not cause for public cynicism Is desirable because alternatives are ineffective

26. Copyright © Allyn & Bacon 2007 3. When the Rule Does Not Apply The exclusionary rule does not apply in: Grand jury investigations Habeas corpus proceedings Parole revocation hearing Civil actions brought by the IRS Deportation hearings Most civil asset forfeiture proceedings

27. Copyright © Allyn & Bacon 2007 4. Exceptions to the Rule Good faith exception: Created in Massachusetts v. Sheppard and United States v. Leon Provides protection for honest, good faith mistakes Not limited strictly to police mistakes Impeachment exception: Prosecution can use unconstitutionally-obtained evidence to impeach a witness

28. Copyright © Allyn & Bacon 2007 B. The “Fruit of the Poisonous Tree” Doctrine Created in Silverthorne Lumber Co. v. United States Defined: The exclusionary rule applies not only to evidence obtained as a direct result of a constitutional rights violation, but also to evidence indirectly derived there from

29. Copyright © Allyn & Bacon 2007 1. Exceptions to the Doctrine Attenuation/purged taint Evidence admissible if “taint is purged” Factors considered include whether Miranda rights were read, temporal proximity, intervening events, and flagrancy of initial misconduct Independent source Evidence admissible if obtained by neutral third party Inevitable discovery Evidence admissible if it would have been found anyway