Recent Court Cases on Fourth Amendment, Law Enforcement and Qualified Immunity Issues
Green & Green has been representing police officers and municipalities for over thirty years and takes pride in providing assistance to the men, women, and institutions that keep us safe. These types of claims require critical analysis of complex constitutional and immunity issues as well as standards for policy conduct. As part of our continuing effort to assist the law enforcement community, Green & Green regularly provides training and updates to officers and departments throughout Ohio on civil liability and constitutional issues. Set forth below are brief summaries of several recent federal and state court decisions addressing issues related to civil liability for police officers that will affect how claims against law enforcement will be reviewed.
In Cty. of L.A. v. Mendez, No. 16-369, 2017 U.S. LEXIS 3396 (May 30, 2017), the United States Supreme Court issued a unanimous decision striking down the Ninth Circuit’s “provocation rule,” which had held a use of force that was reasonable based upon the circumstances in which it occurred may be rendered unreasonable if the confrontation had been “provoked” by an officer’s earlier, separate Fourth Amendment violation. In reversing the Ninth Circuit, the Supreme Court emphasized that each constitutional violation must be analyzed separately. This is in contrast to how Plaintiffs, and sometimes even courts, attempt to analyze use of force claims. Plaintiffs will often attempt to establish a use force claim by simply arguing that the seizure was unlawful and hence any force used was per se unreasonable. We believe that the Mendez decision will be helpful in getting lower courts to analyze use of force claims separate from rather than in conjunction with the false arrest claims.
The United States Supreme Court also recently reaffirmed the need for lower courts to consider the clearly established prong of the qualified immunity test in a specific rather than generalized manner. Noting the number of cases in which it has reversed lower courts on such grounds, the Court stated that “[t]oday, it is again necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality.” Unfortunately, a large number of district and even circuit courts continue to find that an alleged constitutional violation is clearly established simply based on generalized proclamations of law such as the right to be free from excessive force or the right to be free from arrest without probable cause despite such clear and repeated admonitions from the Supreme Court. This latest case will be useful in arguing against such incorrect applications of qualified immunity, and will hopefully provide at least grounds for obtaining reversal of erroneous district court decisions on appeal. This case can be found at White v. Pauly, 137 S. Ct. 548 (2017).
In State v. Polk, 2017-Ohio-2735. the Ohio Supreme Court issued a decision holding that two separate searches of an unattended bag by a school official pursuant to the school’s policy allowing such searches in order to determine the bag’s ownership and whether its contents were dangerous were reasonable and not in violation of the Fourth Amendment. Thus, a gun found during the subsequent search of the bag’s owner by the police in response to bullets found during the school’s second search of the bag should not have been suppressed. In reaching this decision, the Ohio Supreme Court noted that while students do not shed their constitutional rights at the school door, a school does not need probable cause, or even reasonable suspicion of criminal activity, to justify a search; the only consideration is whether the search was reasonable under all the circumstances in light of the school’s need to maintain order and ensure the discipline, health, and safety of the students. The Ohio Supreme Court declined to rule on the issue of whether the exclusionary rule should extend to searches conducted by school officials, finding that it was moot given their decision that the school’s search did not violate the Constitution. Accordingly, the Court left unresolved the issue of whether a school’s unreasonable search will render unreasonable a subsequent search by an officer based on information obtained by the school during its search.
Finally, several months ago the Ohio Eighth District Court of Appeals in Cleveland held that a police officer can be civilly liable under state law for the subsequent criminal actions of a suspect that they failed to properly investigate. In that case, an officer was approached by a woman who claimed a man had attempted to rape and kill her. The police subsequently arrested the suspect and investigated the woman’s claims, but released him when it was determined by the prosecutor upon consultation with the police that there was not enough evidence to charge the suspect with the attempted rape. It was later discovered that the suspect was in fact a serial rapist and murderer who had killed and raped at least eleven women, whose remains were found on his property. Nine of the victims were killed following the suspect’s release from jail, and the estates for the subsequently killed women brought claims against the investigating officers. The Eighth District held that investigating officers can potentially be held liable for the subsequent criminal actions of the released suspect if the evidence showed that their investigation had been reckless. In reaching this decision, the Eighth District rejected the officers’ claims that they were protected by common law concepts of duty pursuant to which a person is not held liable for the criminal acts of other individuals. The Eighth District’s decision can be found at Moore v. City of Cleveland, 2017-Ohio-1156.
This determination was based on the Ohio Supreme Court’s recent decision in Argabrite v. Neer, 2016-Ohio-8374. In Argabrite the Ohio Supreme Court rejected lower court decisions that held a police officer is not the proximate cause of injuries sustained by innocent third persons as the result of a vehicular pursuit unless the officer’s conduct was extreme and outrageous. Instead, the Supreme Court held that the statutory immunity scheme was the sole consideration and officers may be held liable for such injuries if they acted recklessly or any other manner necessary to abrogate statutory immunity. We believe one of the main flaws in Argabrite is the Court’s conflation of the concepts of traditional tort requirements (duty, breach, and causation) with the statutory immunity requirements. In other words, the decision in Argabrite addressed the extreme and outrageous requirement as being a judicially created additional basis for immunity rather than a judicially recognized basis for addressing the preliminary question of whether an officer was the proximate cause of the injuries sustained by a third party. This confusion by the Supreme Court has resulted in the Eighth District’s conclusion that traditional tort concepts have no application whatsoever to state law tort claims against police officers and the only applicable determination for imposing liability is whether the statutory exceptions to immunity are applicable.
We believe that this is incorrect and that a party must first establish an underlying basis for bringing the tort before the issue of statutory immunity is ripe. A court should not reach the question of statutory immunity if the facts do not support the basic elements of a tort claim against the officer. The Eighth District’s decision has been appealed to the Ohio Supreme Court, and we are hopeful it will accept jurisdiction to address this issue and the uncertainty raised by the Argabrite decision. We are monitoring the status of that appeal for any new developments.
The author, Jared A. Wagner, Esquire, is a shareholder at Green & Green, Lawyers whose practice includes the defense of municipalities and law enforcement in policy liability and immunity cases. If you have questions in these areas, Green & Green has the experience and skill to assist.