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Unformatted text preview: Section 1983:
The Contours of Policy CRJU E491P, Police Liability
Spring 2011, Mr. Smith Spell v. McDaniel (1987) Spell, who had been drinking alcohol and taking Quaaludes, was stopped by Officer McDaniel while driving in the City of Fayetteville, North Carolina.
McDaniel arrested Spell, handcuffed him, and took him to the police station where he was subjected to various sobriety tests and required to take a breathalyzer test.
Spell was charged with DWI and with unlawful possession of the Quaaludes and was returned, still handcuffed and inebriated, to McDaniel’s custody. McDaniel, apparently angered by Spell's failure to respond to his questions, assaulted Spell brutally. When Spell attempted to ward off McDaniel’s blow toward his head by raising his arms, McDaniel seized his handcuffed arms, pulled them down and violently kneed Spell in the groin. McDaniel’s blow to Spell's groin ruptured one of his testicles, necessitating its surgical removal. Spell sued McDaniel individually under section 1983 alleging that McDaniel, acting under color of state law, had deprived him of rights secured by the Fourth, Fifth and Fourteenth amendments by using excessive physical force against him. Spell also sued the City of Fayetteville alleging that it was liable for his damages because McDaniel's conduct, which resulted in the violation of his constitutional rights, was undertaken pursuant to a municipal “policy or custom.” The Meaning of Policy
The The word “policy” implies a “course of action consciously chosen from among various alternatives” respecting basic governmental functions, as opposed to the periodic exercise of discretion in the operational aspects of government. In other words, policy involves strategic, as opposed to operational, choices. “Policymaking authority” implies authority to set and implement general goals and programs for municipal government.
“Discretionary authority” implies authority to make choices in purely operational aspects of government which are governed by the municipality’s policies. As the Spell court stated, “policymakers ... decide the goals for a particular city function and devise the means for achieving those goals.” Written Policies
Written Written policies that are unconstitutional on their face are exceptionally rare in law enforcement cases under section 1983, but not unheard of. In Maddux v. Officer One (2004), the city of Pasadena, California had a written policy authorizing its police officers to forcibly enter a thirdparty’s premises without a warrant clearly unconstitutional under Steagald v. US.
In Tardiff v. Knox County (2006), the Knox County, Maine Sheriff’s Department had an unconstitutional written policy authorizing the strip search of felony arrestees who were arrested for nonviolent, nonweapon, nondrug related charges. More often, facially constitutional policies have been deemed by courts to have been unconstitutionally applied. In Lanier v. City of Woodburn (2008), a California city had a drug testing policy for new employees that was held unconstitutional as applied to a teenage girl who was applying to be a page at the public library. Customs or Practices
Customs When there is not an officially written policy, a plaintiff may be able to establish that there is a practice or custom which has the force of policy for which the municipality should be held responsible.
In Spell, although no written policy directed McDaniel’s actions, Spell was able to establish the de facto policy of the municipality by showing the practices of the police department through the testimony of citizens, present or former officers of the police department, an assistant state district attorney, the former legal advisor to the police department and the internal records of the police department itself. Policy by Delegation
Policy The Spell court noted that policy may be attributed to a municipality in one of two ways:
1) The policy is directly “made by municipal lawmakers;” or
2) The policy is made by a municipal agency, which has been delegated final authority by municipal lawmakers to establish and implement relevant policy. The authority of the municipal agency may be based upon either a) a direct delegation of authority from the municipal lawmaking body itself; or b) conferral by higher authority, such as a state statute.
Delegation may be express, as by a formal jobdescription, or implied, as from a continued course of knowing acquiescence by the municipal governing body in the exercise of policymaking authority by the agency. Direct Delegation of Authority
Columbia Municipal Code Section. 1031. Chief of Columbia Municipal Code Section. 1031. Chief of police; authority of police on city lands outside city limits.
The chief of police, subject to the city manager, shall have administrative supervision over the police department. He shall be responsible for the enforcement of state laws and city ordinances, protection of life and property, preservation of law and order, investigation of crimes and suppression of vice, and he shall direct the proper assignment of police officers, establish training programs, maintain adequate records, provide traffic control and enforcement, cooperate with other law enforcement agencies, establish departmental rules and regulations, and be responsible for the custody of city prisoners. The chief of police and police officers are given the same authority over lands owned by the city or leased to the city beyond the city limits as they have within the city. He shall perform such additional duties as may be assigned to him by the city manager. Conferral by Higher Authority
SC Code section 231540. Service of process, orders and notices; penalties for default.
The sheriff or his regular deputy, on the delivery thereof to him, shall serve, execute and return every process, rule, order or notice issued by any court of record in this State or by other competent authority ... The Difficulty with Proving Policy
The Establishing that a municipal policy has “caused” injury often proves problematic.
Although extreme situations, such as that involved in the Spell case, make the decision less difficult for trial judges, most complaints do not rise to the level of the brutal behavior exhibited by Officer McDaniel and courts are often presented with numerous, usually conflicting, considerations that play into the determination as to whether the municipality can be held liable.
The Fourth Circuit Court of Appeal’s opinion provides an indepth description of the considerations that go into attribution of officer behavior to a municipality. Establishing Municipal Liability
Establishing Typically, plaintiffs use one of four methods to establish municipal liability under section 1983: They identify an officially adopted or promulgated written policy. They identify a custom or practice that is not written or formally adopted, but that is repeated, persistent, and widespread and has the force of policy.
They identify a failure on the part of the municipality to take some necessary action which reflects a policy of “deliberate indifference” to the rights of citizens. They identify a specific decision made by a final policymaker for the municipality which has the effect of policy. In the Spell case, the city’s liability was attributable not to any written policy or a specific decision of a policymaker but, instead, to a widespread practice having the force of policy and deliberate indifference to citizens’ rights as evidenced by a defective training regimen. Evidence of Training and Practice
Evidence In Spell, one police officer then currently serving in the department testified that he had seen new officers being trained in the technique of kneeing persons in the groin and that Officer McDaniel's kneeing of Spell was consistent with the training that he had received in the department; that there was little reason to report observed acts of brutality because his supervisor had told him that there was nothing that could be done about it.
Another officer testified that the Chief of Police’s philosophy was to “kick ass and take names” and that he wanted “supercops” who were tougher than the soldiers at Fort Bragg. The officer testified that the Chief, in order to further his goal, set up his own police academy so he could screen out women and nonaggressive male candidates. Sub-delegation of Policy
Sub-delegation In the Spell case, the Chief of Police, Dixon, had been expressly delegated policymaking authority by the City of Fayetteville. The official job description for the position of Chief of Police described the position in general as “directing the full activities of the Police Department.” The job description also stated that that the Police Chief “plans, programs, directs and evaluates the operation of the Police Department, ... formulates and implements police policy, procedures, rules, regulations and programs; ... promotes assigns and disciplines all personnel.” Dixon further delegated his power to subordinates. Chief Dixon's authority was shared, both in the setting and the implementing of policies and programs, with three subordinate Command Sergeants and that subdelegation was impliedly authorized by the City as a contemplated aspect of the Police Chief’s authority. Special Law Enforcement Concerns
Special Although the factual underpinnings of the Spell case left no doubt with respect to the liability of the City of Fayetteville, its Chief of Police, and several of its officers, the court voiced two concerns raised by the application of the principles of municipal liability to incidents of unconstitutional conduct by law enforcement officers:
1) A concern that a municipality should not be allowed to avoid liability and final responsibility by a court’s overly rigid interpretation of the concepts of policy or custom; and
2) A concern that a municipality should not be subjected to respondeat superior liability due to a court’s overly flexible interpretation of the concepts of policy or custom. The above concerns highlight a number of questions which remain problematic today in terms of establishing a municipality’s policy as the “moving force” behind the plaintiff’s injury in the section 1983 action. Whose Policy Is It?
Whose What happens when a municipal official enforces a policy not created or adopted by the municipality itself? In Cooper v. Dillon (2005), the sheriff of Key West arrested the editor of a free newspaper for violating a state statute which made it a crime to disclose nonpublic information obtained by the editor as a participant in an internal investigation of law enforcement. The statute was determined to be unconstitutional, and the question became whether the enforcement of the statute could be attributed to the City of Key West as policy, because the sheriff was a final policymaker for law enforcement purposes.
The city claimed it was not its policy, but a state statute, that was being enforced. The court held the statute was not mandatory and that the city made a conscious decision to enforce it, thus adopting it as its own policy. The current view appears to be that if a city’s position is to enforce all state laws, then municipal liability will not likely attach for the enforcement of any particular state law. Ultimately, cases involving municipal enforcement of state law are going to turn on the degree of the city’s exercise of discretion in enforcing some state laws but not others. Again, Whose Policy Is It? What happens when a municipality has an interagency agreement with another entity of government whose policy is the source of the constitutional injury? In Ford v. City of Boston (2001), the city used the county jail to house some of its detainees, but the jail had an unconstitutional strip search policy.
The city tried to argue that it was not its policy but that of the county that caused the injury, but the court held that the city was aware of the practice and, thus, it became the city’s policy also. Can Good Policy Save Bad Custom?
Can What happens if a city has a constitutionally sufficient written policy which, apparently, is not followed? In Marriott v. County of Montgomery (2006), the county had a clearly constitutional written policy addressing strip searches of detainees at its detention facility. In reality, however, the court noted, there was a practice of unconstitutional strip searches, stating “[c]onstitutional words cannot erase unconstitutional conduct.” Is Every Act of the Policymaker Policy?
Is A single decision by an official with policymaking authority can constitute official policy and attach liability to the municipality, but is every act or decision by someone who is a final policymaker considered “policy?”
See Board of County Commissioner of Bryan County, Oklahoma v. Brown (1997) ...
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This note was uploaded on 06/06/2011 for the course CRJU E491P taught by Professor Smith during the Spring '11 term at South Carolina.
- Spring '11