1. Civil and Criminal Remedies for Constitutional Violations
Chapter 11
Civil and Criminal Remedies for Constitutional Violations

2. Introduction civil remedies criminal remedies administrative remedies
dual sovereignty
Introduction

3. Civil Remedies tort compensatory vs. punitive damages
Title 42, Section 1983 of the U.S. Code
Bivens suit
Civil Remedies

4. Section 1983 Legal Actions
taken against local and state law enforcement officials
Monroe v. Pape: individuals can sue state officials for damages in federal or in state court
three elements that a plaintiff must establish by a preponderance of the evidence
color of law
violation of constitutional rights
immunity

5. Color of State Law
the defendant exercise power that he or she “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law”
totality of the circumstance
whether the individual’s acts were undertaken in furtherance of his/her responsibilities as a police officer or were undertaken as a private citizen

6. Violation of Federal Constitutional and Statutory Rights
defendant violated a right guaranteed by the U.S. Constitution or federal law
violation of a right guaranteed by a state constitution but not guaranteed by the U.S. Constitution may not be the subject of a legal suit under § 1983

7. Individual Liability under § 1983
liability may be imposed on
a police officer who is directly responsible for violating an individual’s constitutional rights
his/her commanding officer
in some cases, city officials
an “affirmative link” between the actions or orders of the supervisors and the allegations of police misconduct must be proved to hold supervisors liable

8. Immunity absolute and qualified Harlow v. Fitzgerald
§ 1983 suits are intended to compensate individuals who have been harmed by a violation of their federal constitutional rights and rights under federal statutes
§ 1983 suits impose a burden on government officials, some of whom may prove to be completely innocent

9. Absolute Immunity
enjoyed by judges, prosecutors, witnesses, and jurors
during a trial, individuals are asked to make difficult choices and should not be in fear of being sued

10. Qualified Immunity
offered to police officers, prison officials, correctional officers, probation officers, and other criminal justice practitioners
liable under § 1983 for the violation of a “clearly established right”
whether an objectively reasonable officer would be aware that his or her conduct is unlawful
police and other criminal justice professionals work under enormous pressures and that the line between unlawful and lawful conduct often is unclear
three steps
whether the individual/officer violated the plaintiff’s constitutional right
whether the right was clearly established
whether the right violated was a clearly established constitutional or federal right

11. Legal Equation

12. Immunity of Judges and Prosecutors
officials still may be criminally prosecuted for penal offenses such as corruption, bribery, or conspiracy to deprive an individual of his or her civil rights
Mireles v. Waco: “[a]lthough unfairness and injustice to a litigant may result on occasion, it is a general principle of the highest importance of the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his convictions without apprehension of personal consequences to himself”
Forrester v. White: judges can be held liable under § 1983 when carrying out administrative, not judicial, tasks
Imbler v. Pachtman: rationale for prosecutorial immunity is similar to that for judicial immunity

13. Affirmative Duty to Protect
question of whether the police, correctional officers, or other government officials are civilly liable for failing to protect an individual or the public from a criminal act
police and other government officials have no legal obligation to intervene to protect the general public
police do have a duty to protect those over whom they have control (e.g. prisoners) and those with whom they have a “special relationship”
“state-created danger” exception

14. Liability of Local Governments Under § 1983
state governments and agencies cannot be sued under § 1983
Eleventh Amendment
liable when police officials or other employees inflict an injury while carrying out an official governmental “policy” or custom
liability
causality
factors
accountability
resources
local budgets

15. Injunctions
a court order that directs an individual or government to stop an unlawful activity
a violation of an injunction is punishable by contempt
typically have been issued only where there is evidence that police officials have resisted demands to change discriminatory or harmful police department policies that present a clear and immediate threat of harm

16. Pattern and Practice of the Deprivation of Constitutional Rights
Federal Police Misconduct Statute, 42 U.S.C. § 14141: it is unlawful for law enforcement officers or law enforcement agencies to “engage in a pattern or practice of conduct” that deprives individuals of a constitutional right or right guaranteed by the laws of the United States
pattern-or-practice decree

17. State Tort Remedies Against Law Enforcement Officers
tort actions against law enforcement officers are difficult to win because they possess the defense of official immunity
proof by a preponderance of the evidence that the tort was committed in a “willful or malicious fashion”
respondeat superior

18. Remedies for Constitutional Violations by Federal Agents
Bivens v. Six Unnamed FBI Agents: federal law enforcement officers are responsible for constitutional torts that violate individuals’ Fourth Amendment rights
the requirements for a Bivens suit are essentially the same as the requirements for a § 1983 suit
federal judges and prosecutors enjoy absolute immunity
federal law enforcement and correctional officers, the heads of federal agencies, and presidential aides are provided qualified immunity for violating constitutional rights that are not clearly established
elements of a Bivens action: similar to that of a § 1983
Federal Tort Claim Act, 28 U.S. C. § 1346(b)

19. Legal Equation

20. Criminal Prosecutions
prosecutors often encourage an individual to seek a civil remedy rather than look to the government to initiate a criminal prosecution against a police officer
state criminal codes also often include specific provisions punishing official misconduct and obstruction of justice by government employees
Graham v. Connor
federal criminal prosecution
18 U.S.C. § 242
Screws v. United States

21. Internal Affairs internal affairs division
four possible results of an internal affairs investigation
unfounded
exonerated
not sustained
sustained

22. External Review civilian review
concern of outsiders second-guessing police actions
authorities
civilian investigation
civilian oversight
civilian mediation