Date: Tue, 19 Jun 2001 10:14:48 -0700
From: quixote@goodnet.com ("Andreasen")
Subject: FW: [Lis-LEAF] MORE Police Brutality: Court Gives More Protection to Officers Sued Over Force
To: randerson22@home.com ("Bob Anderson")
Save for future reference.
Liz
-----Original Message-----
From: R. J. Tavel, JD [mailto:freedomlaw@iquest.net]
Sent: Tuesday, June 19, 2001 6:15 AM
To: Learning Electronically About Freedom mailing service
Subject: [Lis-LEAF] MORE Police Brutality: Court Gives More Protection
to Officers Sued Over Force
Importance: High
[NB: From http://drtavel.com/FALSEARR.htm
Police Brutality
The illegal exercise of police power is a constant reality for most
individuals in all major metropolitan areas in America. Most litigation in
this area of the law has been processed in the federal courts under federal
statutes found in Title 42 of the United States Code at sections l983
through 1989. Until recently those courts had shown a relative sensitivity
to civil rights claims. Today injustice and indifference sit behind these
benches.
The assertion of a civil right should be understood to be an integral part
of progressive social change in a democratic society. On the one side we
have the police who are not obligated to protect anyone except those who
presume responsibility for dictating the terms of the existing social and
economic order (as well as those with whom they have a special relationship
such a person in their custody or an informant), and on the other side are
those who are seen as a challenge to that authority. Peer review is mostly
non-existent and discipline is, likewise, never imposed upon errant
officers (except when same is politically expedient and a lamb must be
ritually sacrificed).
Even when there is the rare finding of "the use of excessive and
unnecessary force," at trial, the jury pool is so heavy pre-screened that
governmental units and police forces have come to rely on the fact that
federal magistrates and judges, like their state counterparts, will back
them up in every ruling on every motion made by their defense attorneys. *
Federal courts provide the forum for determining whether in fact the
alleged misconduct amounts to an abuse of a civil right. Thus, every time a
police officer kills or maims, makes an illegal search, steals, suppresses
free speech, and, generally, participates in unconstitutional acts, that
officer is impairing the individual's right and at the same time is
thwarting legitimate societal change.
Although it is not easy to file prepare and try a civil rights case, these
pleadings are posted to serve as templates for your pursuit of you rights
because, in a representative democracy, it is important that such actions
be pursued. Finding a lawyer to champion your cause is becoming
increasingly difficult, as noted above and below regarding the criminality
of Judge Sarah Evans Barker.* Even the big corporate law firms who
regularly and steadfastly defended these suits are getting out of this
practice area because of the Draconian and xpensive procedural restraints,
strained state and municipal budgets, and whimsical often irrational
behavior of federal judges and their magistrates even while seeking to
insulate the governmental units from liability. While the victims are
compensated with money damages for the wrongs they have endured, police
misconduct litigation informs the public that police brutality is not an
unusual or rare event, but in fact is an institutionalized police practice
often repeated against innocent persons. It is society that benefits the
most from this litigation as police misconduct is brought out in the open,
exposed to public censure and review. And if we are ever to see positive
change in police behavior we must complain of their misconduct every time
it is incurred. Only then will we have enough of an impact on federal court
dockets to back them up far enough so that these courts cannot back up the
police in their misdeeds.
[see also, Meltzer, Daniel J. 1988. "Deterring Constitutional Violations by
Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys
General." Columbia Law Review 88:247-328. Cf. STAMPS v CITY OF TAYLOR (MI)]
Contrast with AELE - Americans for Effective Law Enforcement,
Inc.(representing the interests of the country's elected prosecutors,
police chiefs and county sheriffs) Amicus Curiae Center.
sRJ]
---
http://www.nytimes.com/2001/06/19/national/19SCOT.html
WASHINGTON, June 18 The Supreme Court added an extra layer of protection
today for police officers accused in suits of using excessive force.
In a 6-to-3 decision, the court ruled that a lawsuit against a police
officer for using excessive force must be dismissed even if the officer's
behavior was unreasonable under existing law, as long as a reasonable
officer could have made the same mistake under the particular circumstances.
The decision overturned a ruling by the United States Court of Appeals for
the Ninth Circuit, in San Francisco, that grew out of a brief altercation
at the Presidio Army base there in 1994. During an appearance by Al Gore,
then the vice president, to mark the conversion of the base to a national
park, an animal-rights activist at the front of the crowd started to unfurl
a banner objecting to the possible use of an Army hospital there as a site
for animal experiments.
Two military police officers quickly dragged the man away and threw him
into a nearby van. The man, Elliot Katz, president of a group called In
Defense of Animals, was then 60 years old and wearing a leg brace due to a
fractured foot. Though he fell to the floor of the van, he was not injured.
He sued one of the officers, Donald Saucier, for subjecting him to an
unreasonable seizure in violation of the Fourth Amendment.
When any law enforcement officer is sued for a constitutional violation,
the question immediately becomes whether the officer is entitled to have
the suit dismissed under the doctrine of "qualified immunity." Under this
doctrine, as defined by Supreme Court precedents, an officer cannot be
found liable for behavior that was objectively reasonable under law that
was clearly established at the time. Under this standard, many suits
accusing police officers of making illegal searches or arrests are
dismissed at the summary judgment stage, without a trial.
The Ninth Circuit, though, viewed excessive-force cases in a way that
effectively ruled out qualified immunity and sent many of those cases,
including this one, to trial. The appeals court concluded that since the
issue of reasonableness was at the heart of both the immunity question and
of excessive force itself, the issues merged and should be left to a jury
to sort out.
Writing for the majority today, Justice Anthony M. Kennedy said this was
the wrong approach because the two issues were really not the same.
"The concern of the immunity inquiry is to acknowledge that reasonable
mistakes can be made as to the legal constraints on particular police
conduct," Justice Kennedy wrote.
Thus, he continued, even police behavior that is objectively unreasonable
might be entitled to immuniy.
"If the officer's mistake as to what the law requires is reasonable,"
Justice Kennedy ruled, "the officer is entitled to the immunity defense."
Having established the analytical framework, the court went on to decide
the merits of the case, Saucier v. Katz, No. 99-1977
http://a257.g.akamaitech.net/7/257/2422/18june20011100/www.supremecourtus.go
v/opinions/00pdf/99-1977.pdf
. Justice Kennedy said that under the particular circumstances including
the presence of the vice president, the need for heightened security and
the fact that Mr. Katz did not suffer a physical injury the officer's
behavior "was within the bounds of appropriate police responses."
Justice Kennedy added, "The suit should have been dismissed at an early
stage in the proceedings."
The decision was joined by Chief Justice William H. Rehnquist and by
Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. Justice
David H. Souter joined the part of the opinion that set out the test to be
applied, but said the Ninth Circuit should have been given a chance to
apply it in the first instance.
In a separate opinion, Justice Ruth Bader Ginsburg, joined by Justices John
Paul Stevens and Stephen G. Breyer, agreed that the officer was entitled to
immunity because "Katz's submissions were too slim to put Officer Saucier
to the burden of trial."
But Justice Ginsburg disagreed with the court's analysis, which she said
"holds large potential to confuse" by establishing a complex two- part
reasonableness inquiry.
She said the test should be the Ninth Circuit's simpler one: an officer
whose use of force is objectively reasonable "simultaneously meets the
standard for qualified immunity" while one whose conduct is objectively
unreasonable "should find no shelter under a sequential qualified immunity
test."
In another decision, the court ruled 8 to 1 today that the United States
Customs Service is entitled only to a modest degree of judicial deference
for its classification rulings that decide whether particular import items
are subject to a tariff.
The decision vacated a ruling by the United States Court of Appeals for the
Federal Circuit, a specialized appeals court here with jurisdiction over
certain trade cases. That court refused to defer to the Customs Service's
judgment that three-ring notebooks known as day planners, imported from
China by the Mead Corporation, should be classified as bound diaries and
subject to a 4 percent duty. Mead had appealed the agency's determination,
arguing that the day planners were not bound, were not diaries and were not
subject to any duty.
The question for the Supreme Court in United States v. Mead Corp., No.
99-1434
http://a257.g.akamaitech.net/7/257/2422/18june20011100/www.supremecourtus.go
v/opinions/00pdf/99-1434.pdf
, was the extent of judicial deference to which a federal agency is
entitled for its administrative determinations that are not the product of
a formal regulatory process. Customs officials in 46 regional offices make
more than 10,000 classification rulings a year of the sort at issue in the
case.
The government argued that these determinations were entitled to the
highest degree of deference, known as Chevron deference after a 1984
Supreme Court decision, Chevron v. Natural Resources Defense Council, 467
U.S. 837 (1984)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=467&invol=837
.
Writing for the court today, Justice Souter said that while the agency was
entitled to modest deference under a 1944 Supreme Court decision, Skidmore
v. Swift & Co., 323 U.S. 134 (1944)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=134
it was not entitled to Chevron deference because there was no evidence that
Congress intended to delegate to the Customs Service the power to issue
rulings with the force of law.
"Any suggestion that rulings intended to have the force of law are being
churned out at a rate of 10,000 a year at an agency's 46 scattered offices
is simply self-refuting," Justice Souter said.
The court sent the case back to the Federal Circuit to apply the 1944
decision.
Justice Scalia filed a vigorous dissent to argue that the court should not
have departed from the high degree of deference called for by Chevron. He
called the decision today "one of the most significant opinions ever
rendered by the court dealing with the judicial review of administrative
action," and added: "Its consequences will be enormous, and almost
uniformly bad."
After appearing only a few weeks ago to be on track for a peaceful
conclusion to the term, the court now is facing a ragged close, with all
the remaining decisions pushed off until next week or, possibly, later.
There were four decisions today, with 10 still to go, including three cases
involving immigration and deportation; a campaign finance case involving
the constitutionality of limits on political parties' use of so- called
hard money; a case on the First Amendment rights of tobacco companies; and
a Rhode Island zoning dispute that poses constitutional issues of land-use
regulation.
Theodore B. Olson, the Bush administration's recently confirmed solicitor
general, performed his first ceremonial duty in the courtroom today,
formally presenting Attorney General John Ashcroft to the justices.
Liberty's Educational Advocacy Forum
http://freedomlaw.com
promotes "action that raises the cost of State violence for its
perpetrators ... lay(ing) the basis for institutional change." [Noam
Chomsky]
Dr. Tavel's Self Help Clinic and Sovereign Law Library
http://drtavel.com/
Not a high-tech law firm brochure, "because a lawyer is only
as smart as you make him" [Max Katz] and
"the Law . . . should be accessible to
every man and at all times." [Franz Kafka]
For Liberty in Our Lifetime,
R.J. Tavel, JD
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