Unformatted text preview: Protections Under the Due
Process Clause and the
Bill of Rights
Bill CRJU E491P, Police Liability
Spring 2011 Mr. Smith Constitutional Protections
Constitutional To establish a section 1983 case, a plaintiff must establish two elements:
(1) the action occurred “under color of law”; and (2) the action involved a deprivation of a constitutional right or a federal statutory right.
Establishing the second element, where the deprivation alleged involves a constitutional right bestowed by one of the amendments of the Bill of Rights, will require that the plaintiff show that the specific amendment had application to the situation resulting in the deprivation. States and Constitutional Rights
States In 1833 the US Supreme Court held in Barron v. Baltimore that the US Constitution’s Bill of Rights applied only to the federal government. The effect of the Barron decision was that the states could not be held accountable for violations of the rights established in the Bill of Rights inasmuch as the Supreme Court viewed them as only having application to the federal government.
Beginning in 1925 in Gitlow v. New York, however, the Supreme Court held that the states were required to observe First Amendment free speech protections. The Incorporation Doctrine
The After Gitlow, the Supreme Court decided a series of cases which have created the socalled “incorporation doctrine.” The effect of the “incorporation doctrine” cases has been to hold that most of the significant provisions of the Bill of Rights, but not all provisions, now apply to the states, by virtue of their being “incorporated” through the due process clause of the Fourteenth Amendment. The Fourteenth AmendmentThe
Due Process Clause
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Federal Constitutional Protections
Federal The Fourteenth Amendment’s “due process” clause, as applied through the “incorporation doctrine,” makes certain specific Bill of Rights amendments applicable to the States.
The Fourteenth Amendment, by itself, however, also provides for two additional types of constitutional protections independent of and in addition to the rights specified in the Bill of Rights: substantive due process and procedural due process. Accordingly, there are three separate types of section 1983 claims that are enforceable through the due process clause of the Fourteenth Amendment:
1 Claims for the deprivation of a specific identified right in the Bill of Rights which has been made applicable to the states through the incorporation doctrine;
2 Claims made directly under the procedural component of the due process clause which prohibits the deprivation of life, liberty, or property without first affording a fair procedure; and 3 Claims made directly under the substantive component of the due process clause which prohibits the deprivation of life, liberty, or property through “arbitrary government actions,” regardless of the Specific Identified Rights
Specific For purposes of law enforcement related section 1983 actions, the Fourth and Eighth amendments are the most important provisions of the Bill of Rights and typically they are used as a basis for claims involving the use of force. Both amendments have been incorporated through the Fourteenth Amendment’s due process clause; the Fourth Amendment in 1961 in the case of Mapp v. Ohio and the Eighth Amendment in 1962 in the case of Robinson v. California.
The specific constitutional amendment to support the plaintiff’s use of force claim against law enforcement will depend upon the plaintiff’s status at the time of the use of force. The Fourth Amendment applies to “seized” individuals and prohibits the use of unreasonable force.
The Eighth Amendment applies to prisoners and prohibits cruel and unusual punishment. Fourth Amendment Force Claims
Fourth The Fourth Amendment applies to claims of criminal suspects not claims of persons who have been already adjudicated and incarcerated. As such, these claims arise in the context of pretrial suspect injuries.
Whether law enforcement officers have violated the Fourth Amendment during an investigation or arrest depends upon the resolution of two issues: In using force, did officials “seize” the suspect within the meaning of the Fourth Amendment? and
Was the force used “objectively reasonable?” If officers both seized the plaintiff and used force which was not objectively reasonable, then the plaintiff has stated a claim under the Fourth Amendment for purposes of section 1983. Eighth Amendment Force Claims
Eighth The Eighth Amendment applies to claims by persons who are already adjudicated and incarcerated, not to claims of pretrial criminal suspects. As such, these claims usually arise in the context of prisoner injuries.
Although malice is not an element of a Fourth Amendment claim, which is evaluated based on the “objective reasonableness” of the behavior, it is the central inquiry under the Eighth Amendment for a claim alleging the use of excessive force in a prison setting.
The Eighth Amendment standard for the use of force is “whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” When is the Violation Established?
When Where the violation is based on a specific identified right in the Bill of Rights, the violation is established at the time of the injury.
For example, where a plaintiff claims that a police officer has used force that is not “objectively reasonable” in order to effect a seizure of the plaintiff, thus violating the Fourth Amendment’s prohibition against unreasonable “seizure,” the violation is established at the time of the officer’s action. Procedural Due Process Claims
Procedural A claim based on a denial of procedural due process challenges the constitutional adequacy of state law procedural protections accompanying an alleged deprivation of a constitutionally protected interest in life, liberty, or property. It is not the deprivation itself that is actionable, but only the deprivation without adequate procedural protections being in place. Thus, as an example, state officials may have had a right to effect the deprivation of the plaintiff’s liberty but the complaint is that the officials did not afford the plaintiff the appropriate procedural process before doing so. Procedural due process is based on the concept of an individual's right to be adequately notified of charges or proceedings involving him, and being afforded an opportunity to contest, or be heard on, the government’s action. When is the Violation Established?
When Where the claim is based on a deprivation of procedural due process, the violation is not established until a court makes the following determinations: a) That the plaintiff was deprived of a life, liberty, or property interest that was constitutionally protected as a matter of substantive law.
b) That the process which accompanied the deprivation of the protected interest, if any, was constitutionally inadequate. For example, a prisoner’s claim that prison officials routinely deprive prisoners of a benefit available to them is not established until a court has determined that the benefit involves a “life, liberty, or property interest” and, if so, that the procedures in place to protect the interest were constitutionally inadequate. Wolff v. McDonnell (1974)
Wolff Robert McDonnell brought a class action on behalf of himself and other prisoners at the Nebraska Penal and Correctional Complex in Lincoln, Nebraska in which he alleged that the rules, practices, and procedures which might result in the taking of prisoner “good time” violated the Due Process Clause of the Fourteenth Amendment.
The Supreme Court held that prisoners have a right to procedural due process in disciplinary hearings including: The right to a written notice of charges The right to present witnesses and evidence The right to a hearing before an impartial body; and The right to a written notice of the decision “Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.’ But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Substantive Due Process Claims
Substantive The protections afforded by the substantive component of the due process clause have generally been limited to “matters relating to marriage, family, procreation, and the right to bodily integrity.”
However, the Supreme Court has also recognized substantive due process protections in law enforcement cases involving the use of force where the plaintiff was neither a suspect, so as to warrant Fourth Amendment protection, nor incarcerated, so as to warrant Eighth Amendment protection. Fourteenth Amendment Force Claims
Fourteenth The Supreme Court has clearly articulated factors for determining malice under the Eighth Amendment and unreasonableness under the Fourth Amendment. It has set no clear standard, however, for Fourteenth Amendment force claims. In cases involving use of force against pretrial detainees (i.e. persons who have been arrested but not yet convicted of a crime), the standard of conduct is that the force used must not be of such a nature as to constitute “punishment.”
In nondetainee cases, the standard of conduct is that the use of force must not “shock the conscience,” an expression that has been interpreted by many courts to mean that the officer must not have had “an intent to harm.” Under the substantive due process component of the Fourteenth Amendment, a use of force claim may be actionable if it involves a deprivation of “liberty… without due process of law.”
A substantive due process use of force claim is appropriate only if neither the Fourth nor the Eighth Amendment applies. Thus, for example, if the use of force resulting in the deprivation of liberty constituted a “seizure,” the claim can only be brought under the Fourth Amendment as incorporated by the due process clause. However, where the deprivation of liberty results from the action of an officer that did not constitute a “seizure,” the Fourth Amendment would not apply, and the use of force claim would be actionable only under the substantive due process component of the Fourteenth Amendment. When is the Violation Established?
When Where the claim is based on a substantive injury that is not covered by any specific amendment in the Bill of Rights, the violation is established at the time of injury.
For example, a claim that a police officer has engaged in behavior in the course of a police pursuit that directly caused the death of a nonsuspect third party, does not state a claim under the Fourth Amendment because the nonsuspect was not “seized” or under the Eighth Amendment because the nonsuspect was not being held in confinement. Accordingly, the claim must be evaluated as an “arbitrary government action” which violated the nonsuspects right to life under the due process clause of the Fourteenth Amendment, the establishment of which would vest at the time of the officer’s action. County of Sacramento v. Lewis (1998)
County The case arose out of a highspeed chase between Sacramento County sheriff’s deputies and two men on a motorcycle: Brian Willard and his passenger, Phillip Lewis. The chase reached speeds up to 100 miles per hour and ended when Willard lost control of the motorcycle and it tipped over. One of the pursuing deputies, following closely behind the motorcycle, could not stop in time to avoid it when it fell over and ran over Lewis, the passenger, killing him.
Because Lewis was not a suspect, his parents’ claim against the County for excessive force in causing his death could not be based on the Fourth Amendment and because Lewis was not incarcerated, the claim could not proceed under the Eighth Amendment. The case, thus, proceeded based upon a claim of violation of Lewis’ substantive due process rights under the Fourteenth Amendment. The substantive due process component of the Fourteenth Amendment protects against “arbitrary action.” For an action to be arbitrary it must “shock the conscience” and negligence is not sufficient to establish a violation of substantive due process.
In Lewis, the Supreme Court held that to violate the substantive due process component of the Fourteenth Amendment, an official’s actions would have to “shock the conscience.”
On the facts of the Lewis case, the court noted that the officer’s actions would have been conscienceshocking only if he had acted with malice, that is, with the “intent to harm” Lewis physically or to worsen his legal plight, but that he did not so act. Summary: The Distinctions
Summary: The differences between substantive and procedural due process can be stated as follows:
Substantive due process focuses on challenges to government conduct which actually deprive a person of a right or entitlement. Procedural due process focuses on the individual’s right to notice and an opportunity to be heardbefore government the government takes any action to deprive the person of a right or entitlement. The Lack of Affirmative Duty
The The due process clause specifically prohibits a state from depriving “any person of life, liberty, or property, without due process of law.” It does not, however, create an affirmative duty for a state to protect the life, liberty, and property of its citizens from deprivations inflicted by private individuals.
In DeShaney v. Winnebago County Department of Social Services (1989), the US Supreme Court held that the due process clause of the Fourteenth Amendment does not create an affirmative duty on the part of the state to “protect the life, liberty, and property of its citizens against invasion by private actors.” In the DeShaney case, Joshua DeShaney, a three year old boy, was returned in January 1983, by order of the Juvenile Court, to the custody of his father, Randy, after having been removed from the home previously by DSS based on allegations of abuse. DSS was required to monitor Joshua’s placement with Randy for signs of abuse, but despite numerous reports of suspected abuse that came to DSS’ attention they took no action to remove Joshua.
In March 1984, Randy beat Joshua so severely that he fell into a lifethreatening coma and suffered brain damage so severe that he was expected to spend the rest of his in an institution for the profoundly retarded. In the ensuing section 1983 action that was brought against DSS for violation of Joshua’s substantive due process rights under the Fourteenth Amendment, the Supreme Court held that the due process Clause protects against state action only, and as it was Randy DeShaney, a private actor, not DSS, who abused Joshua, DSS was not responsible for his injuries. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf... it is the State's affirmative act of restraining the individual's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." State Created Danger Doctrine
State Beyond a recognition of an affirmative “duty to protect” when the state incarcerates or involuntarily institutionalizes a person recognized by the Supreme Court in DeShaney, it also hinted that that an affirmative duty to protect may exist where the state is responsible for creating the danger confronting the individual. This recognition of a possible duty has been developed by a number of lower courts and has become known as the “state created danger doctrine.” Wood v. Ostrander (1989)
Wood The Ninth Circuit Court of Appeals concluded that a state created danger existed and that an affirmative duty to protect was owed to a female passenger by a state trooper who arrested the driver of the car, impounded the vehicle, and left the female passenger stranded in a highcrime area at 2:30 a.m., where she was subsequently raped.
Even though the female passenger was not in state custody, the danger with which she was confronted, and the injury she suffered, would not have come about but for the actions of the state’s agent, the police officer. “A reasonable police officer who acted as Wood alleges Ostrander acted should have understood that what he was doing violated Wood's constitutional right to be free from an unjustified intrusion into her personal security in violation of her liberty interest under the fourteenth amendment.” ...
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- Spring '11
- Fourteenth Amendment to the United States Constitution, US Supreme Court