07 January 2008

Excessive Force Law

Judge Posner's opinion on the issue of excessive force in removing someone held in contempt of court from a court room is a nice primer on the issue of the law of excessive force by police officers in a wide variety of situations.

The ruling also likely to lead to a settlement of the ten year old case against the officers, because of the ruling's emphasis on the inherent unreasonableness of using a great deal of force to subdue a fragile, morbidly obese litigant (causing his death) when there was no reason to rush in the circumstances that presented the officers (i.e. trying to remove a litigant from the courtroom at the end of the day).

As the ruling explains (editorial bracketed material in the original, citations omitted):

The issue under the Fourth Amendment “is ‘whether the officers’ actions
[were] objectively reasonable in light of the facts and circumstances confronting them.’ ”The officers’ intent in using force is irrelevant in a Fourth Amendment case. Only its reasonableness matters—which means whether it was excessive in the circumstances, because if it was, it was unreasonable.

The reasonableness of an officer's actions must consider circumstances known to a reasonable officer, but not those hidden from and unknown to an officer. What is excessive is, as we said, relative to circumstances, but more precisely to circumstances as a reasonable police officer would perceive them."

If the act is unreasonable given what the officer knows, "The tortfeasor takes his victim as he finds him."

The opinion also explores which of the officers might be liable, exploring four situations.

The first is that each defendant’s act makes the injury to the plaintiff a little worse and it is the combination of the acts of separate defendants that does him in. Then each defendant is liable only for the increment in harm that he caused. . . .

Second, each defendant might by his own act have inflicted the entire injury, in the sense that, had he not committed the act, the injury would have been no less grave than it was, as when two persons shoot a third and each wound would have been fatal by itself. Again, both would be liable, but this time jointly and severally. . . .

Third . . . each defendant might have committed an act that is a tort when injury results (for there is no tort without an injury), but it is unclear which defendant’s act was the one that inflicted the injury—both shot at the plaintiff, one missed, but we do not know which one missed. Again both are jointly and severally liable. . . .

And fourth, one defendant might commit the act that causes the harm yet the other be sued as well because he could have prevented the harm but did not. Tort law imposes no general duty of rescue . . . But there is an exception for the case in which the officer is responsible for creating the peril that creates an occasion for rescue . . . If they should have realized that their colleagues were using excessive force they had a duty to intervene, for they were part of the arresting force, awaiting a call to join . . . should it become necessary.

The fact that the removal of the person from the court room was ordered by a judge was held to be irrelevant.

Of course, much of this analysis would be irrelevant in the ordinary tort law regime where principals (in this case the sheriff's office and in turn the county) are vicariously liable for the acts of their agents, the rule that applies to private corporations. If vicarious liability were at play, sorting out which officer was responsible for injuries to what extent would be irrelevant, and the reasonableness of the officer's actions taken as a whole would be the only thing that mattered. But, because the law of excessive force is obsessed with pinning responsibility for civil rights violations on individuals, considerable fact finding is required.

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