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Friday, July 28, 2017

Excessive force

Following the President's speech today, the Suffolk County Police Department found it necessary to announce to the public (and remind their officers) about the Fourth Amendment and strict department policies regarding use of force and handling of prisoners and the lack of tolerance for roughing up prisoners. So the higher-ups realize there is at least a perception problem. (The International Association of Police Chiefs also issued a statement, declaring that treating all people with dignity and respect is the "bedrock principle behind the concepts of procedural justice and police legitimacy"). On one hand, the exchange shows institutions pushing back against presidential lawlessness. On the other, the disconnect between police executives and rank-and-file is striking.

But I could see discovery in the next excessive-force civil rights claim against the Department becoming interesting, because a good plaintiff's lawyer could make hay out of this event. Cane she use the video and the department response to suggest the officer knew the force was wrong and used it anyway, defeating qualified immunity? Does the cheering rank-and-file show a departmental custom? What if the next involved officer is one of those sitting behind the President, identifiable, and visibly cheering/laughing/clapping officers are identifiable--can that be used to overcome immunity? Can a plaintiff's lawyer make a failure-to-[blank] claim by showing that the department did nothing to discipline or retrain the officers who visibly cheered/laughed/clapped?

Posted by Howard Wasserman on July 28, 2017 at 07:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


It should, which is why this department (and a bunch of others across the country) tweeted as they did. But the broader point is it has to do that and it is running into a fact question of whether what it did was sufficient. As plaintiff's attorney, I would argue that two tweets are insufficient. And I am not sure that eliminates the qualified immunity problem.

Posted by: Howard Wasserman | Jul 29, 2017 7:04:05 PM

If the police/sheriff department conducts "refresher" training for all uniformed officers on its written policies and procedures related to handling persons in custody, does that action effectively shield (pun intended) the department from charges of excessive force.

I believe the "larger" issue is that the President does not know the contents of the Constitution and has conveniently "forgotten" his oath of office.

Posted by: Paul | Jul 29, 2017 6:47:06 PM

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