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Saturday, July 19, 2014

Chokeholds and clearly established rights

This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).

I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:

1) What will the court do with the video on summary judgment? As I wrote in a  draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.

2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).

3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).

Posted by Howard Wasserman on July 19, 2014 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

Here is a beautiful counterpoint video from Stephen Fry. Check it out.

http://youtu.be/J7E-aoXLZGY

Posted by: Eric | Jul 20, 2014 3:26:08 PM

Sorry ended up on wrong subject. My apologizes . Tried to post on weird al grammar video.

Posted by: Eric | Jul 20, 2014 3:27:47 PM

"On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. "

Assuming that the Civilian Complaint Review Board has no power, and that the NYPD brass are at best slow to discipline police officers (in other words, reality), would a claim against the city be pursuable under some doctrine of deliberate neglect/deliberate tolerance of such behavior?

Posted by: Barry | Jul 21, 2014 2:19:11 PM

At least one District Court has relied on Scott v. Harris to rule in favor of a 1983 plaintiff in a 1983 case. In Hulstedt v. Scottsdale, a neighbor recorded a police shooting. The district court ruled that the video demonstrated that the civilian did not present an immediate threat to the officers before being shot and that the officers had shot him without issuing a warning, as required in the 9th. More definitive than the chokehold case, to be sure, but an example of the Scott standard being used by courts to rule for plaintiffs.

Posted by: Schedlinski | Jul 23, 2014 12:37:53 PM

Law enforcement officer training (1992) recognized and identified the inadvertent consequences of utilizing the "choke hold."
Primarily stimulus of the vagus nerve and positional asphyxia due to arrest.
It is NOT the law enforcement training information, but the "attitude" of the Instuctor, Field Training Officer and Patrol Partner all being in compliance with departmental policy & procedure established by previous insured and carrier losses and professional discredit.

Posted by: Liam1306 | Jul 26, 2014 3:36:42 PM

"...check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see."

Video can be a distorted insight into events. Perhaps it is excessively callous and tangential to make the comparison, but I was taken by the many different camera angles used in the recent World Cup. In soccer, a small clip or shove (delivered with all players in a full sprint) can easily destroy a players balance and result in arms flying and people falling. The foul is given and there is outrage... or not. But the point is that I witnessed multiple replays which told entirely different stories. From some perspectives, I could see absolutely no reason to award a foul. From other angles, the foul was stunningly obvious. Same event, different perspectives, leading to entirely different, unambiguous conclusions.

Posted by: Glenn S. | Jul 30, 2014 1:42:39 PM

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