As I always do after my webinars, I reviewed the questions and comments posted by attendees. One comment gave me pause: “I want my agency to be able to evaluate a use of force and determine if it was a violation of the Constitution.” This statement confirmed exactly why I felt these webinars were necessary.
Such case law analysis requires effort and patience, but it may provide valuable training material, even when the courts have failed to provide black-and-white directives on officers’ specific actions.
If I could teach officers to evaluate whether a use of force violates the Constitution in one webinar, or in 10 webinars, I would be a rich man. As I emphasized in the webinar, under the Graham v. Connor objective reasonableness standard, the validity of an application of force is determined by a careful analysis of the facts on a case-by-case basis. In other words, every case is potentially different because of its unique facts. Add to that the application of the complicated and potentially confusing law pertaining to qualified immunity, and it becomes extremely difficult to know what is or is not a legal police action. Yes, a careful study of cases can reveal certain categories or types of police actions that are prohibited by clearly established law. This is the focus of the second webinar. But this still leads to a factual analysis of every case.
If it is so difficult to determine whether a use of force violates the Constitution, what are the police to do?
Qualified Immunity Under Federal Law
Police officers may be entitled to qualified immunity in a Section 42 U.S.C. § 1983 action. Qualified immunity was created through case law in recognition of the fact that public servants need to be able to make discretionary decisions without the constant fear of liability for civil damages.
There are two parts to the qualified immunity analysis:
- Did an officer’s conduct violate a statutory or constitutional right?
- If yes, was that right clearly established?
A subsequent case clarified that this is not a rigid two-step process. Courts do not need to first determine whether the facts alleged by the plaintiff amount to a violation of a constitutional right. Instead, they can just make the determination as to whether that right was “clearly established.” What is clearly established can be elusive and complicated, but as the Supreme Court of the United States once reasoned, “Use of excessive force is an area of the law ‘in which the result depends very much on the facts of each case,’ and thus police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”
The issue of whether qualified immunity applies is typically addressed during a motion for summary judgment. In such cases the moving party is typically the municipality and/or the officer(s).
Officers must understand a critical point about how the qualified immunity issue is decided: In determining whether officer conduct violated a constitutional right, a court must analyze the facts in a light most favorable to the non-moving party (typically the plaintiff), unless there is evidence to the contrary. Body camera video or other video evidence is one way the courts can deviate from the allegations of the plaintiff.
Is everything crystal clear at this point? I know what some of you are thinking: We are still no closer to understanding how officers can use case law to guide their behavior. But understanding some basics about qualified immunity is foundational to this understanding because many use of force cases involve qualified immunity.
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Using Qualified Immunity to Assess Whether Use of Force Is a Constitutional Violation
To determine whether a particular use of force is a constitutional violation, officers must look at how qualified immunity is applied in specific cases. This will take a careful reading of how the court analyzes the facts and the applicable law.
Some of the common scenarios we see in case law include:
- The court grants qualified immunity because the law was not clearly established. Thus, the court avoids determining whether the underlying facts rose to a constitutional violation. In these cases, there is not much to apply to other scenarios. Sure, if those exact same facts were to happen to you in the future, and that case was controlling in your jurisdiction, then you would know you did not violate clearly established law. But does that really give you any benefit? Is it likely that the exact same facts would happen again?
- The court denies qualified immunity because there is a genuine issue of fact as to whether the use of force is a constitutional violation and there is sufficient evidence for a jury to reasonably find for the plaintiff. This may or may not apply to other scenarios. The court isn’t necessarily ruling the officers did anything wrong; it is sometimes simply leaving the issue in the hands of a potential jury because the facts are subject to varying interpretation. But this scenario is where a careful reading of how the court reviews the facts is important. In some cases, the tone of the decision makes clear how the court would likely rule if it were up to them instead of a jury – which can then apply to other scenarios.
- The court grants qualified immunity because, after considering all the facts in a light most favorable to plaintiff, the court rules there is no genuine issue of fact and the officer’s action did not amount to a constitutional violation. The plaintiff will, therefore, not be able to show clearly established law prohibiting the specific police conduct.
- The court ruled there is no genuine issue of fact, and the officer’s actions did amount to a constitutional violation. The remaining question is whether the actions violated a clearly established constitutional right. If yes, qualified immunity is denied. If not, qualified immunity is granted. When a court rules that the officer’s actions violated clearly established law, now you need to pay attention! Especially if that decision is binding in your jurisdiction. Once again, however, you need to pay close attention to the reasoning of the case to determine what actions crossed the line.
The last scenario is the only one that gives any definitive answers about what specific police actions under specific sets of circumstances are clearly deemed to be constitutional violations. But what about all the other categories of cases? What value are they to the police since they do not give definitive rules?
This is where we need to change the paradigm about how we look at use of force cases. Instead of looking for quick, definitive answers that may not exist, we must dig deeper into all the above categories of cases and try to figure out where things went wrong. We must ask, what do we want our officers to do in a similar situation? In cases that need to go before a jury, what happened in the facts of the case that led the court to determine whether a jury, and not the court, should decide?
If it is so difficult to determine whether a use of force violates the Constitution, what are the police to do?
Such case law analysis requires effort and patience, but it may provide valuable training material, even when the courts have failed to provide black-and-white directives on officers’ specific actions.
A Tragic Case of Swatting
Let’s look at an example using a case involving what has become a disturbing trend – swatting. The case I chose for this example, Finch v. Rapp, contains many of the elements described so far in this article.
One quick general aside: While cases that come from the Supreme Court or the federal courts of appeals are preferable and the result controlling, sometimes lower court cases may contain a more detailed review of the facts of the case. In the Finch case, the district court did an extensive review of the facts of the case. This can be valuable for the purposes of learning where things may have gone wrong and what things went right.
The case starts in a different state from where the incident occurred. Two people playing an online game of Call of Duty got into a dispute. Gamer #1 asked where Gamer #2 was located, and Gamer #2 gave a bogus address in a city in an entirely different state. The people living at that address had nothing to do with the game or the dispute.
Gamer #1 recruited a man known for swatting to “swat” Gamer #2 at what he thought was the right address. This led to a very convincing 911 call in which the caller gave the address given during the dispute. He told a dispatcher he had shot his father in the head and was holding his mother and brother at gunpoint. He also indicated he had poured gasoline around the house and would set it on fire if the police came in.
Officers responded and the sergeant on the scene started directing officers and coordinating the response. One officer was positioned in the front of the house with a long rifle, and others were on differing sides of the house, although some ended up in an apparent crossfire per the available body cam video. Shortly after the officers began to position themselves, a 28-year-old resident, Andrew Finch, stepped out onto the front porch. Immediately multiple officers began yelling conflicting commands and within 10 seconds the officer with the rifle fired one round, striking Finch in the chest. He fell backwards into the house and died within minutes; he was unarmed. The officers then quickly determined there was no emergency at the home.
The district court ruled the circumstances of the incident, including the inconsistent testimony of the officers, created a genuine issue of fact for a jury to consider. As summarized by the 10th Circuit Court of Appeals:
The district court concluded a reasonable jury could find: (1) Finch was confused but attempted to comply with officers’ commands and his movements did not indicate hostile or threatening action; (2) persons yelling at Finch were not immediately recognizable as police; (3) Finch simply moved his arms when officers were giving him multiple commands; (4) Finch’s movements did not suggest he was attempting to draw a firearm; (5) Finch was never told to keep his hands up in the air or that he would be shot; (6) an officer could see Finch was not actively resisting commands; and (7) Rapp was unaware Finch was attempting to go back into the house when Finch was shot.
This answers one of the questions in a qualified immunity analysis: A reasonable jury could find that the officer who shot Finch violated a constitutional right by shooting an unarmed man. The next question then becomes, was it clearly established that an officer, even when responding to a dangerous reported situation, may not shoot an unarmed and unthreatening suspect? Both the district court and the appellate court found this was clearly established at the time of the shooting.
Remember that during a motion for summary judgment such as this one, the court must look at the facts most favorable to the plaintiff. As frequently happens after a municipality loses at summary judgment, the parties settled the case for $5 million. As a result, we will never know what a jury would have ruled. But a careful reading of both the district and the appeals court rulings sheds light on training issues that may help prevent future tragedies, including
- Some officers were dressed in all black with obstructed identification and not immediately apparent as officers. Light shining at Finch and the residence caused him to squint and could have made it difficult for him to see.
- Multiple officers were yelling loud and conflicting commands and any movement Finch made may have been because of one of those commands. The officers themselves could not hear who was yelling what.
- Finch appeared to be startled by all the activity and the available video could have led a jury to believe he was confused and attempting to comply with commands.
This is valuable information and should be integrated into scenario-based training. We train on consistent procedures in high-risk incidents (e.g., shining lights in the eyes of a person, yelling commands), but do we discuss or consider the perspective of the person on which we use such tactics? We know we are police officers, but do we train enough on ensuring we effectively identify ourselves?
Conflicting commands given by multiple officers is another important consideration; it’s one of the trends I am seeing used against officers in use of force cases. If single, clear commands are given, a court is more likely to side with officers when a person ignores those clear commands. The necessary discipline to give single origin, clear commands in a high-risk, volatile situation requires frequent training. Finally, swatting incidents continue to happen with alarming frequency. The possibility that any call could be a hoax needs to be openly addressed in training and considered as a possibility during response to dangerous incidents. Dispatchers should be on alert for signs of a swatting call, such as the caller’s lack of knowledge about details of the incident location. And tactical officers should, when possible, compare information from dispatch with what they’re observing in person.
A Lot to Learn
Finch v. Rapp serves as a clear illustration that, while we will now never know whether the officers’ actions amounted to a constitutional violation, there is still much to learn from it and other cases like it. Such incidents can be very frustrating to officers. The officers were thrown into this high-stress situation by the criminal and despicable acts of other persons. An innocent life is lost, and the officers’ lives are changed forever. But officers must look at this and all cases objectively, without emotion, if we are to learn and prepare for the next incident.
Notes and References
- Harlow v. Fitzgerald, 457 U.S. 800 (1982)
- Pearson v. Callahan, 555 U.S. 223 (2009)
- Kisela v. Hughes, 584 U.S. 100, 104 (2018)
- For a good example of this result, see the case of Armstrong v. Pinehurst, 810 F.3d 892 (4th Cir. 2015)
- For assistance in determining what may be binding versus persuasive case law, please review my first webinar on Interpreting and Understanding Case Law. It is too comprehensive an issue to address in the confines of this article.
- “Swatting” is derived from falsely reported incidents where SWAT teams would typically respond such as serious crimes or hostage situations or active shooter cases.
- Finch v. Rapp, 38 F.4th 1234 (10th Cir. 2022) and the district court case, which I suggest be reviewed as well as the circuit court case at Finch v. City of Wichita, Kansas (UNPUBLISHED) (2020 WL 3403121) (Dist. Ct. D. Kansas 2020). Not all cases are published in an official reporter. If a case does not break new ground or deviate from established legal principles, it is not published in an official court reporter and generally does not have precedential value.
- Finch v. Rapp, 38 F.4th at 1246 (note 1).
- For what it is worth, the swatter is serving 20 years in federal prison and the person who recruited him served 15 months.
