Federal Criminal & Civil Remedies for Unconstitutional Conduct

• Title 42 USC Section 1982– Under Color of State Law

Immunity

• Absolute Immunity– Judges– Legislators– Prosecutors– Statements made within the context of a

judicial hearing

Immunity

• Qualified Immunity– Violation was not clearly established at time of

the act– A reasonable public official confronted with

these facts could have believed that his of her conduct conformed to the relevant standard.

Immunity

• State Tort Immunity– Willful and Wanton Misconduct– Conscious Disregard for the Safety of Others

Factors in Determining Reasonablenessin Police Use of Force Cases

• Severity of crime

• Suspect poses an immediate threat

• Resisting arrest or attempting to flee

Mental State for Excessive Use of Force for Different B of Rs Applications

• Police Officers Use of Force is examined by the courts using a reasonableness standard necessitated because this is a seizure and therefore the 4th Amendment Controls. “The right of the people to be secure in their persons … against unreasonable … seizures, shall not be violated…”

Mental State for Excessive Use of Force for Different B of Rs Applications

• Correctional Officers’ Use of Force is examined by the courts using a willful and wanton standard necessitated because excessive force after conviction is punishment and therefore the 8th Amendment Controls. “(C)ruel and unusual punishment (shall not be) inflicted.”

• Cruel and unusual indicates intentional behavior.

Police Officer in Liable Under Sec. 1983

• If their comrades commit brutality and they take no action to stop it.

Liability of Private Individuals Based on Section 1983

• Act in concert with police.

• Act under State compulsion or with significant State encouragement

• Perform a public function (private corporation operating State prison.)

Criminal Responsibility Title 18 USC 242

• Act under color of law (not just State Law)

• Possessed a willful intent (mental state)

• Violated a constitutional right (that has been)

• Previously made specific through judicial decision.

LESS THAN 2% OF CASES ARE PROSECUTED

14th Amendment

• … nor shall any State deprive any person of life, liberty, or property without due process of law: nor deny to any person within its jurisdiction the equal protection of the laws.

Protection Afforded by the 14th Amendment

• Substantive Due Process – Culpable Action DeShaney v. Winnebago

County Department of Social Services = No constitutional duty of the public official to protect the public from harm except:

• Discriminatory Denial of Police Protection– Jeffrey Dahmer

• Duty to Protect Persons in Custody – People are no longer capable of taking care of themselves

– Kneipp v. City of Philadelphia

Equal Protection of the Law

• Deliberately treating one person differently from another because;– A person’s membership in a protected class– A desire to punish the person for exercising a

constitutional right– Malicious intent to injure the person out of

spite.

Law Enforcement Professional’s Constitutional Rights in the Workplace

• 1st Amendment Rights– Limited rights after Garcetti v. Ceballos

• 4th Amendment Rights– Limited in employment case

• 5th Amendment Rights– Garrity