Copyright © Allyn & Bacon 2007 Chapter 2 Remedies for Constitutional Violations.

Copyright © Allyn & Bacon 2007

Chapter 2

Remedies for Constitutional Violations


Introduction: Remedies for Constitutional Rights Violations

A remedy is a method of rectifying wrongdoing Extralegal remedies are those conducted outside

the legal process (e.g., vigilantism) Legal remedies are made available by law, court

decisions, or police agency policies and procedures

This chapter focuses on legal remedies The most common remedy in criminal procedure

is the exclusionary rule Others are lawsuits, complaints, and prosecution


I. CIVIL REMEDIES

Civil remedies are lawsuits Damage suits=lawsuits where $ is sought Injunctive relief=lawsuits where one seeks to

bring injurious action to a halt


A. 42 U.S.C. Section 1983: Liability of State Officials

42 U.S.C. Section 1983 (a.k.a. Section 1983) is a statute providing for liability of government officials

Section 1983 enjoyed a resurgence in Monroe v. Pape (1961)


1. Color of Law

Defendant must act under color of law for a Section 1983 claim to succeed

Color of law applies when a police officer: Identifies himself or herself as an officer Performs criminal investigations Files official police documents Makes an arrest Invokes police powers Settles personal vendettas with police power Displays weapons or police equipment


2. Constitutional Violation

Defendant must commit a constitutional violation for a Section 1983 lawsuit to succeed

A specific constitutional provision must be violated (e.g., the Fourth Amendment)

Culpability is also necessary


3. Theories of Liability

Supervisory liability An affirmative link is necessary

Municipal/county liability Policy or custom Failure to train

Individual liability Most Section 1983 lawsuits against police officers

invoke the Fourth and/or Fourteenth Amendments Different culpability standards exist for the Fourth

Amendment and for Fourteenth Amendment substantive and procedural due process


B. Bivens Claims against Federal Officials

In Bivens v. Six Unknown Named Agents (1971), the Supreme Court held that federal officers can be sued under Section 1983

Bivens is limited to federal law enforcement officers

Other federal officials enjoy absolute immunity


C. Defenses to Section 1983 Liability

Two defenses to Section 1983 liability exist: Sovereign immunity Qualified immunity


1. Sovereign Immunity

The 11th Amendment protects states and state officials in their official capacity

Lawsuits against other government employees and lower-level units of government are acceptable

11th Amendment only limits jurisdiction of the federal courts


2. Qualified Immunity

A judicially-created defense Objective reasonableness standard used Qualified immunity does not apply if a defendant

violates a clearly established right of which a reasonable person would have known (Harlow v. Fitzgerald, 1982)


D. State Tort Liability

Applies when Section 1983 does not Intentional torts require intent to cause injury or

damage Negligence torts are more common and require

showing: Legal duty Breach of duty Proximate causation Actual damage or injury


1. Defenses against State Tort Liability

Officers sued under state tort law are protected from the “public duty doctrine”: Police protection is owed to the public, not individuals

Contributory negligence Officer shows plaintiff contributed

Comparative negligence Who is to blame?

Assumption of risk Plaintiff assumed risk

Sudden peril Split-second decisions are necessary


II. CRIMINAL REMEDIES

Federal and state statutes provide remedies for police misconduct

Most laws that apply to ordinary citizens also apply to police officers


A. Federal Law

18 U.S.C Section 242 is to criminal liability what Section 1983 is to civil liability

Other federal statutes exist as well


B. State Law

Criminal liability can extend to police officers for almost any offense

Police officers enjoy immunity from criminal liability for some “law violations” if they are committed justifiably as part of their duties (e.g., justifiable shooting)


III. NONJUDICIAL REMEDIES

Three nonjudicial remedies can be identified: Internal review Civilian review Mediation


A. Internal Review

Police departments review complaints internally Internal affairs falls into this category


B. Civilian Review

Citizens are involved in reviewing complaints of misconduct


1. Varieties of Civilian Review

There are three identified forms of civilian review Civilian review (strongest) Civilian input (middle) Civilian monitor (weakest)


C. Mediation

An objective third-party resolves grievances between police and complainants

Ombudsman system fits here


IV. THE EXCLUSIONARY RULE

A rule of exclusion Provides that evidence obtained in violation of

the Constitution cannot be used in a criminal proceeding to prove guilt

Found nowhere in the Constitution


A. The Rule and Its History

Rule first recognized in Boyd v. United States (1886) and Weeks v. United States (1914)

In Silverthorne Lumber Co. v. United States (1920), the Court recognized that the Fourth Amendment is a sham without an enforcement mechanism

Elkins v. United States (1960) scrapped the silver platter doctrine Permitted use of evidence in federal court that had been

obtained illegally by state officials Rule applied to the states in Mapp v. Ohio (1961)


1. Applicability of the Rule beyond the Fourth Amendment

There is debate about the scope of the exclusionary rule

The perspective taken here is that it applies not only to the Fourth Amendment, but the Fifth, Sixth, and others


2. Arguments for and against the Rule

Critics believe that the rule: Does not deter misconduct Excludes reliable evidence Rule creates public cynicism Rule punishes innocent citizens Should be abandoned in favor of other remedies

Supporters believe that the rule: Deters misconduct Is rarely applied Is not cause for public cynicism Is desirable because alternatives are ineffective


3. When the Rule Does Not Apply

The exclusionary rule does not apply in: Grand jury investigations Habeas corpus proceedings Parole revocation hearing Civil actions brought by the IRS Deportation hearings Most civil asset forfeiture proceedings


4. Exceptions to the Rule

Good faith exception: Created in Massachusetts v. Sheppard and United

States v. Leon Provides protection for honest, good faith mistakes Not limited strictly to police mistakes

Impeachment exception: Prosecution can use unconstitutionally-obtained

evidence to impeach a witness


B. The “Fruit of the Poisonous Tree” Doctrine

Created in Silverthorne Lumber Co. v. United States

Defined: The exclusionary rule applies not only to evidence obtained as a direct result of a constitutional rights violation, but also to evidence indirectly derived there from


1. Exceptions to the Doctrine

Attenuation/purged taint Evidence admissible if “taint is purged” Factors considered include whether Miranda rights were

read, temporal proximity, intervening events, and flagrancy of initial misconduct

Independent source Evidence admissible if obtained by neutral third party

Inevitable discovery Evidence admissible if it would have been found

anyway

Copyright © Allyn & Bacon 2007 Chapter 2 Remedies for Constitutional Violations.

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