Chapter 11: Civil and Criminal Remedies for Constitutional Violations

Question 1

3 Additional Remedies deterring police from constitutional (4th, 5th, 6th Amend.) violations

Answer 1

Civil Remedies

Criminal Remedies

Administrative Remedies

Question 2

These remedies are aimed at the legal ______________ of officers, not the ____________ of _____________ from trial.

Answer 2

responsibility; exclusion; evidence

Question 3

Civil Remedies

Answer 3

Suing…

• individual officer
• officer’s supervisor

or

• local govt

…for money damages.

Also, it’s requesting court order that police stop practices that violate constitutional rights.

Question 4

Criminal Remedies

Answer 4

State & federal officers criminally prosecuted and punished.

Question 5

Administrative Remedies

Answer 5

Officers may have administrative procedures.

• i.e. fines, suspension, termination, etc.

Question 6

Dual Sovereignty Doctrine

Answer 6

Exception to “Double Jeopardy.”

both federal and state jurisdiction over punishing criminal offense.

Question 7

A ________ suit is a _______ action, made primarily to _____________ victim, rather than punish ______________ (person who committed the tort).

Answer 7

civil; tort; compensate; tortfeasor

Question 8

Police officers and public officials may be sued for _____________ if the victim believes their ______________ rights were violated. Also, in exceptional cases of _____________ abuse, plaintiff may be awarded ______________ damages, to ________ future law enforcement agents from repeating that kind of behavior.

Answer 8

damages; constitutional; intentional; punitive; deter

Question 9

Two types of Tort Actions that can be taken

Answer 9

• Against State Officers
  (State Civil Remedies)
• Against Federal Officers
  (Federal Civil Remedies)

Question 10

42 U.S.C. § 1983

Answer 10

state officers may be sued for acting under the color of state law to violate one’s federal or constitutional rights in state or federal court.

Injunctive relief can be requested in court order to halt all unconstitutional police practices depriving people of their rights.

Question 11

Bivens Legal statute

Answer 11

federal officers may be sued for violation of federal / constitutional rights in federal court.

Question 12

In state civil remedies under 42 U.S.C. § 1983, the burden of proof is on the _____________ to demonstrate their _____________ have been violated.

Answer 12

plaintiff; constitutional

Question 13

3 Elements of state civil remedies claim under 42 U.S.C. § 1983

Answer 13

• Color of the Law: police have to have acted under color of state law.
• Constitutional Right: police have to have violated a constitutional right.
• Immunity: police receive qualified immunity, only subject to tort action when they violate “well established constitutional right.”

Question 14

Color of State Law

Answer 14

Defendant (officer) acting under the authority of state law.

Question 15

One can be __________ in and act under the ___________ of state law, and still violate one’s constitutional rights.

Answer 15

clothed; authority

Question 16

Determining whether one is acting under the _________ of ________ law is based on the ____________ of ____________. A judge will ask were the actions of the officer (defendant) in furtherance of their____________ as a police officer or as a ___________ citizen. Some judges will look at, for example an off-duty officer _______________ as a security guard, whether during their service as a security guard they used their state-licensed police firearms.

Answer 16

color; state; totality; circumstances; responsibilities; private; moonlighting

Question 17

For a state civil remedy to work, there must be a violation of a “well ___________ ___________ right.” Under 42 U.S.C. § 1983, a plaintiff can claim their ___th amendment right against unlawful __________, and unreasonable _________ and _________ was violated. They may also claim that ______________ force was exercised during arrest (seizure of ___________). Claims to violation of the ____th Amendment against ____________ _____________ and claims of violation of ____th amendment right to ________ _________may also be made. All the time, prisoners make claims, under § 1983, of violation of ____th amendment right against ___________ and __________ punishment.

Answer 17

established constitutional; 4th; arrest; search; seizure; unreasonable; persons; 5th; self incrimination; 6th; legal counsel; 8th; cruel; unusual

Question 18

Liability under § 1983 may be imposed on an ____________ officer, the officer’s _____________ officer, or public _________ officials (i.e. the mayor) for _____________ of __________ abuse.

Answer 18

individual; commanding; city; pattern; police

Question 19

This right under § 1983 to impose ___________ liability on ______________ officers establishes an “____________ _________” between the supervising officer’s actions and the lower-ranked police ____________.

This “__________ __________” was established in Shaw v. Stroud, (1994), where supervising officer C.I. was held accountable for the ___________ forced exercised by Officer Alfred Morris. Court of Appeals ruled Sergeant C.I.’s __________ about Officer Morris’ regular disregard for _____________ use of force and didn’t do anything about it. It’s because of this negligence that led to the ______________ shooting and killing of the suspect during an arrest.

Answer 19

individual; supervising; “affirmative link”; misconduct

“affirmative link”; excessive; negligence; appropriate; foreseeable

Question 20

Absolute Immunity

Answer 20

Applied to prosecutors, judges, juries, and witnesses

Full immunity from being sued under § 1983.

To ensure that civil proceedings function smoothly.

Question 21

Qualified Immunity

Answer 21

state officers / public officials are subject to suits under § 1983, ONLY WHEN they violate “well established” federal constitutional right / federal statute.

Question 22

Test to establish qualified immunity is whether a ______________ officer would conclude that a certain act is _______________.

Answer 22

reasonable; unlawful

Question 23

Steps in Establishing civil suit under § 1983 against officer with qualified immunity

Answer 23

Step #1: did defendant violate constitutional right?

Step #2: was the right a “well established” constitutional right.

Step #3: Hold officer liable ONLY for violating clearly established constitutional or federal right.

Question 24

As stated before, ____________, ____________, ____________, and ____________ are immune from being sued under § 1983. This means a __________ suit cannot be brought against them for their ______ in court. Obviously if any of these courtroom officials engage in anything underhanded like ____________, ____________, or ___________ then they may be prosecuted.

Answer 24

judges; prosecutors; witnesses; jurors; civil; role; corruption; conspiracy; bribery

Question 25

In Mireles v. Waco (1991), the Supreme Court ruled that a judge is not liable under § 1983 for forcing an attorney to be ___________ into the court room. It was ruled that it was _____________ that a judge should have the power to ___________ all necessary members for a trial be present in the courtroom.

Answer 25

brought; reasonable; force

Question 26

A question of major concern is whether or not police, or other govt officials can be held ___________ liable for not protecting the ___________ from crime by responding to an a ____________? Is there really a difference between an officer ___________ harming someone and ___________ to respond to crime that leads to serious injury / death? The general rule is that police do ______ have an affirmative legal _______________ to intervene and protect the general _____________.

Answer 26

civilly; public; report; directly; failing; NOT; obligation; public.

Question 27

The Supreme Court held that the Due Process Clause of the 14th Amendment does not _____________ the government to ___________ to protect the _________, __________, or ___________ of private individuals, over whom the government has _______ control.

Answer 27

force; intervene; life, liberty; property; no

Question 28

An exception to the general rule that officers are not __________ liable for failing to ____________ on the actions of _____________ individuals that lead to crime, is “state-__________ __________.”

Answer 28

civilly; intervene; private; created danger

Question 29

State-Created Danger Doctrine

Answer 29

Exception to general rule about officer duty to protect.

Danger that the victim wouldn’t have otherwise been exposed to if not for the states actions.

when state creates a situation that leads the victimization of a private individual, the officer/govt may be held liable for not respondent to that danger.

Question 30

State _____________ and state ____________ are immune from liability under § 1983. ____________ government agencies are not exempt from such ____________.

Cities, counties, and local government agencies are ___________ under § 1983 when carrying out official ________________ policy or custom.

Answer 30

government; agencies; local; liability

liable; governmental

Question 31

Local govt agencies are not __________ under § 1983 in situations where an officer takes the __________ into their own __________. They cannot be held liable because an employee ____________ someone’s rights.

Answer 31

liable; law; hands; violated

Question 32

§ 1983 also provides _____________ relief.

Answer 32

injunctive

Question 33

Injunction

Answer 33

Court order, compelling individual or government to stop unlawful act/practice.

Question 34

Pattern-or-Practice Decree

Answer 34

From 42 U.S.C. 14141

Attorney general, based on reasonable cause, asks a court to order than govt / police department change a certain practice that tends to deprive others of their constitutional rights or other rights under U.S. law.

The practice has to be widespread, can’t just be an isolated incident.

Question 35

State police department may work together with the __________ of ___________, and enter into a ____________ decree, where officers voluntarily ___________ to police “_________ practices” regarding procedures like arrest, use of force, searches and seizures, etc.

Answer 35

Department; Justice; consent; agree; best

Question 36

State police agencies may be held liable under _________ law, compensating plaintiffs for ____________ that caused ________. Counties, and state government may also be held liable under __________ in some circumstances as well.

Answer 36

tort; wrongdoings; harm; tort

Question 37

Under tort law, plaintiffs can be awarded _______________ damages, meant to compensate for what the plaintiff may have _________–to make the plaintiff ___________ again. They may also recover _____________ damages, which is sometimes _________ than the compensatory amount, and are meant to punish and __________ the _____________ (person who committed the _________) from acting in such reckless fashion again.

Answer 37

compensatory; lost; whole; punitive; more; deter; tortfeasor; tort

Question 38

Tort Action

Answer 38

Suit in state court for damages to compensate individuals who have suffered harm.

Question 39

Tort actions are difficult to win, since it must be proven that the action that caused harm to the plaintiff was executed in “___________ or _____________” fashion. This means the burden of proof is on the _____________ to prove by _____________ of _____________ (51%), that the officer understood the act was __________, or exercised negligence / ____________ for the risk his actions had on the plaintiff.

Answer 39

willful; malicious; plaintiff; preponderance; evidence; harmful; disregard

Question 40

If the police exercise _____________ force, then the plaintiff has to prove in a _______ for ___________ use of force that use of force was ____________ with the intent to __________ them, OR that they acted without ____________ grounds to believe that the plaintiff posed a ___________ to the officer.

Answer 40

excessive; tort; excessive; purposeful; injure; reasonable; threat

Question 41

The Bivens v. Six Unknown Named Agents, (1971), ruling was pivotal because § 1983 only applied to ________ agents, instead of __________ officials. The Bivens ruling decided that citizens have the right to hold ___________ officials ___________ liable for violations of ______________ and other ___________ rights.

Answer 41

state; federal; federal; civilly, constitutional; federal

Question 42

Bivens legal actions are basically the same as § 1983 legal claims. Courtroom officials including the __________, ________, _____________, and _____________ all receive ______________ immunity. Federal law enforcement officers, heads of agencies, etc. receive ______________ immunity.

Neither a federal ____________ nor the federal ___________ may be sued under Bivens legal action (you can only sue agents).

Answer 42

judge; jury; prosecutor; witness; absolute; qualified

agency; government

Question 43

Elements of a Bivens suit (3)

Answer 43

1) Color of the Law

• defendant must be acting within capacity/authority of official duties (under federal law).

2) Constitutional Right

• defendant has to have violated a clearly established constitutional right.

3) Reasonableness

• defendant may be held liable for violation of clearly established constitutional right or other federal right, AND reasonable person would be aware that acts are unlawful under circumstances.

Question 44

Federal Tort Claims Act

Answer 44

Partial waiver of sovereign “absolute” immunity federal government receives (“the king can do no wrong”) against Bivens suits.

Federal govt can be held civilly liable if a federal officer commits…

• assault
• battery
• false imprisonment
• false arrest
• abuse of process
• malicious prosecution

Question 45

State and local police officers may be _________ in __________ and ___________ court. However, ____________ are reluctant to charge police with crime, since they are ___________ on police cooperation in several other instances (cases). Also ___________ are pretty hesitant to ______________ police officers. Also, there are times when the only eyewitness accounts a prosecutor can rely on is by the police, who, in this case, _____________ to commit criminal activity. For these reasons, prosecutors encourage ________________ to seek a __________ remedy before trying a ______________ prosecution.

Answer 45

tried; state; federal; prosecutors; reliant; jurors; convict; conspire; plaintiffs; civil; criminal

Question 46

Police are charged under the same criminal statutes as ____________ , and may be prosecuted for crimes like homicide, assault, battery, sexual offenses, bribery, extortion of ___________ or ___________, __________ onto private property and hate crimes. Historically, police have been found to be involved in organized ______________ crime in several states. They will often seize drugs during ___________ searches and seizures, and ___________ them for profit to other on the ____________, or back to the ___________ from which the drugs originated.

Answer 46

citizens; money; drugs; trespass; drug; unlawful; resell; street; dealers

Question 47

The U.S. ____________ of ______________ may prosecute ____________ and ____________ law enforcement and other criminal justice officials for violating _________ protecting individual’s ________________ rights, under 18 U.S.C. § 242 (1866 Civil Rights Law) where an officer acts under the ____________ of law and violates one’s _______________ protections or other ____________ laws.

Answer 47

Department; Justice; state; federal; laws; constitutional; color; constitutional; federal

Question 48

Administrative Remedies

Answer 48

Nonjudicial administrative procedures conducted by agencies independent of the police department.

Question 49

Two Forms of Administrative Remedies

Answer 49

Internal Affairs
Civilian Review

Question 50

Internal Affairs

Answer 50

• Unit of Police Dept. that investigates officer misconduct.
• Administers punishment by approval of commanding officer who consults police sergeant.

Question 51

Civilian Review

Answer 51

Committees of private citizens who have authority to investigate and punish police.

Question 52

“Blue Wall of Silence”

Answer 52

Police refusal to report misconduct of other officers.

Question 53

Civilian Review

Answer 53

Civilian review boards that investigate and punish police misconduct.

Made up of civilians, police, judges, and lawyers.

Question 54

Criticisms of Civilian Review:

1) civilians aren’t familiar with the in-the-__________ ____________ associated with being an officer.

2) Having civilians administer punishment degrades the ___________ and ____________ accorded to police _______________.

Answer 54

moment; pressures

respect; authority; administors

Question 55

testilying

Answer 55

police officers lying during testimony.