Policing and Public Transportation (2022)

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10 TCRP LRD 58 III. WHETHER LAW ENFORCEMENT OFFICERS HAVE QUALIFIED IMMUNITY TO § 1983 CLAIMS A. Elements of the Qualified Immunity Defense The doctrine of qualified immunity may shield police offi- cers from liability “for civil rights violations committed in the course of duty if (1) the officer believed in good faith that his conduct was lawful; and (2) it was objectively reasonable for him to believe that his actions did not violate an arrestee’s rights in light of clearly established law and the information available to the officer at the time of the arrest.”76 For example, there may be qualified immunity to “a claim for unlawful arrest and false imprisonment if ‘either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’”77 Although the consequences of a police officer’s mistake of fact or law is discussed in Section IV, infra, according to a fed- eral district court in New York, qualified immunity shields a government official from liability for civil damages if the official’s “conduct did not violate plaintiff ’s clearly established rights, or if it would have been objectively reasonable for the official to believe that [her] conduct did not violate plaintiff ’s rights.” . . . Qualified immunity shields an official even if her conduct resulted from “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”78 A plaintiff may overcome an officer’s qualified immunity de- fense in a § 1983 action when the plaintiff proves that the defen- dant’s conduct violated a constitutional right that was “clearly established” at the time of the officer’s conduct. If a defendant police officer moves for a summary judgment on a plaintiff ’s § 1983 claim, and the opposing parties provide different ver- sions of what happened at the time of the arrest, the court likely will consider “‘the facts and draw reasonable inferences in the light most favorable to the party’ that is opposing the motion.”79 Whether a police officer may be entitled to qualified immu- nity is illustrated by Cutchin v. District of Columbia.80 Cutchin sued two Metropolitan Transit Police Department (MTPD) offi cers (Muñoz and Santiago) in their individual capacities for alleged violations of Cutchin’s Fourth Amendment rights by falsely imprisoning him and using excessive force when arrest ing him.81 Officer Muñoz had observed Cutchin board a Washington Metropolitan Transit Authority (WMATA) bus without paying the fare. Cutchin informed the officer that he had paid the fare with a SmarTrip card; however, after Officer Muñoz rescanned the card, the officer determined that the card 76 Kirk, 2001 U.S. Dist. LEXIS 2786, at *18 (citations omitted). 77 Id. at *19 (citations omitted). 78 Brietkopf, 41 F. Supp.3d at 243-244 (citations omitted) (emphasis supplied). 79 Cutchin v. District of Columbia, 369 F. Supp.3d 108, 119 (D.C. D.C. 2019) (citations omitted). 80 369 F. Supp.3d 108 (D.C. D.C. 2019). 81 Id. at 112 (citation omitted). anniversary of the Occupy Wall Street (OWS) movement. The plaintiffs alleged, inter alia, that during, or in the aftermath of, the plaintiffs’ protest, “they were falsely arrested, subjected to excessive use of force, excessive detention, and malicious abuse of process….”69 They claimed also that New York City, through the city’s agents in the New York Police Department (NYPD), “adopted policies aimed at depriving OWS protestors of their constitutional rights.”70 In dismissing the plaintiffs’ Monell claims against the city, the court stated that municipal liability can be found where: (1) “a particular municipal action itself violates federal law, or directs an employee to do so,” . . . (2) an “authorized decisionmaker has intentionally deprived a plain- tiff of a federally protected right,”. . . (3) unconstitutional “practices [are] so persistent and widespread as to practically have the force of law,” . . . and (4) where a municipality’s failure to train its employees about their legal duty to avoid violating a citizen’s rights amounts to “deliberate indifference….”71 The court held that, although the city’s alleged policies had a “plausible connection” to the plaintiffs’ claims, the Monell claims against the city failed because of a lack of evidence that any one of the alleged policies was “‘so persistent and widespread as to practically have the force of law.’”72 As for the plaintiffs’ claim that the city inadequately trained its police officers, the court applied the Second Circuit’s “three- pronged test” to decide whether the plaintiffs had demonstrated the city’s “‘deliberate indifference’ in the context of a failure to train claim.”73 “First, the plaintiff must show that a policymaker knows to a moral certainty that her employees will confront a given situation.” . . . “Sec- ond, the plaintiff must show that the situation either presents the em- ployee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishan- dling the situation.” . . . And, third, “the plaintiff must show that the wrong choice by the city employee will frequently cause the depriva- tion of a citizen’s constitutional rights.” . . . Where all three elements are established a plaintiff has stated a plausible Monell claim based on a failure to train.74 Nevertheless, in Marom, the plaintiffs’ failed to show “that there is a history of the NYPD mishandling mass [protest] situ- ations on a scale that could be reasonably construed as setting out a pattern or practice of constitutional abuse.”75 City of New York, 2020 U.S. Dist. LEXIS 43364, at *1 (S.D. N.Y., Mar. 11, 2020). 69 Marom, 2016 U.S. Dist. LEXIS 28466, at *2. 70 Id. at *3 (citation omitted). 71 Id. at *68 (citations omitted) (emphasis supplied). 72 Id. at *72 (citation omitted). 73 Id. at *75 (citations omitted). 74 Id. at *75-76 (citations omitted). 75 Id. at *76.

TCRP LRD 58 11 is not entitled to qualified immunity when the “plaintiff estab- lishes that (1) the defendant’s conduct violated a constitutional right, and (2) the right was ‘clearly established’ at the time of the defendant’s conduct.”90 The question of whether a defendant’s conduct violated a plaintiff ’s clearly established constitutional right “is a pure question of law” for the court to decide.91 Under District of Columbia law, a police officer has a quali- fied privilege to use reasonable force to effect an arrest, as long as the means employed are not in excess of those that the of- ficer reasonably believes are necessary. An officer’s use of force violates the Fourth Amendment when the force that was used “is excessive under objective standards of reasonableness.”92 Be- cause the court could not determine as a matter of law whether Officer Guida’s conduct was objectively reasonable, the court denied the defendant’s motion for a summary judgment.93 The court also denied the defendant’s motion for a summary judg- ment on the plaintiff ’s claim for battery because of the officers’ alleged failure to loosen the handcuffs. In Brietkopf v. Gentile,94 supra, a case that involved mul- tiple claims and issues, the decedent Brietkopf ’s representative brought an action against an MTA police officer (Gentile) and other officers and against the City of New York. The case arose after Officer Gentile killed MTA Officer Brietkopf in 2011 by “friendly fire.” Brietkopf ’s estate sued under § 1983 for the de- fendants’ violations of Brietkopf ’s Fourth Amendment rights.95 The case arose after a 911 caller reported seeing a man ( Anthony DiGeronimo) walking with knives. While walking home, DiGeronimo encountered police officers who had re- sponded to the 911 call. When DiGeronimo came toward the officers with a knife, he was shot and killed. Immediately, fol- lowing DiGeronimo’s death, when other officers arrived at the scene, Officers Brietkopf and Rentas of the Nassau County Police Department (NCPD) were dressed in casual clothing and carrying M4 long rifles. Because of their clothing, Breitkopf and Rentas were not distinguishable as being police officers. In fact, Officer Brietkopf appeared to be a civilian carrying an assault rifle.96 When MTA Officer Ramos grabbed Breifkopf ’s shoulder and grasped for the rifle,97 the officers engaged in a scuffle, and Gentile fired one fatal shot at Breitkopf.98 Officer Breifkopf ’s estate brought § 1983 claims against Gentile and Ramos for violating Breitkopf ’s rights under the Fourth and Fourteenth 90 Id. (citation omitted). 91 Id. (citation omitted) (some internal quotation marks omitted). 92 Id. at *9 (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed.2d 272 (2001)). 93 Id. at *12 (footnote omitted). 94 41 F. Supp.3d 220 (E.D. N.Y. 2014). 95 In addition, decedent’s representative brought common law neg- ligence and intentional tort claims for personal injury and wrongful death and claims for violations of the city’s municipal code. 96 Brietkopf, 41 F. Supp.3d at 232. 97 Id. at 233. 98 Id. at 234. had not been used. When the officers were attempting to arrest Cutchin, they discovered that Cutchin was carrying a gun when Cutchin fell and injured himself while attempting to escape.82 The District of Columbia Court of Appeals affirmed Cutchin’s conviction. Thereafter, when Cutchin brought a § 1983 action in a federal district court in the District of Columbia, the defen- dants asserted their defense of qualified immunity. The district court relied in part on the Supreme Court’s decision in Saucier v. Katz,83 in which the Court established a two-step analysis for resolving qualified immu- nity claims by government officials. First, the Court decides “whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.” . . . If the plaintiff satisfies this first step, the Court then decides whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.84 The district court stated that police officers are accorded qualified immunity “regardless of whether their ‘error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’”85 The court granted Muñoz’s and Santiago’s motion for a summary judgment on Cutchin’s claim that they used excessive force, because the officers had qualified immunity for Cutchin’s arrest.86 In Taylor v. Guida,87 the plaintiff brought a § 1983 action after a WMATA police officer (Guida) arrested Taylor after see- ing her exit the Gallery Place Metro Station without paying the fare. The plaintiff alleged “that immediately after the defendant placed her in handcuffs, ‘she complained that they were too tight,’ but the defendant ‘refused to loosen them.’”88 The first issue was whether the officer had qualified immu nity to the plaintiff ’s claim for the use of excessive force. “The doc- trine of qualified immunity shields police officers . . . ‘from lia- bility for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”89 However, a defendant 82 Id. at 115. 83 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). See, how- ever, Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed.2d 565, 576 (2009), in which the Court overruled Saucier and held: On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immu- nity analysis should be addressed first in light of the cir- cumstances in the particular case at hand. Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. (Emphasis supplied). 84 Cutchin, 369 F. Supp.3d at 119 (citations omitted) (emphasis supplied). 85 Id. (citation omitted). 86 Id. at 127-128. 87 2019 U.S. Dist. LEXIS 169165, at *1 (D.C. D.C. 2019). 88 Id. at *2-3 (citations omitted). 89 Id. at *7 (citations omitted).

12 TCRP LRD 58 employees interact.”107 However, a “pattern of similar constitu- tional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train.”108 At the time of the defendants’ motion for a summary judg- ment in the Brietkopf case, first, there was no “evidence that, before March 2011, the MTA knew of a pattern or even one incident involving the misidentification of plainclothes officers and the use of deadly force by [the MTA Police Department] employees….”109 Nor was there any evidence that the MTA was on “notice of any purported deficiencies with the [New York Police Department] Academy’s and the MTA’s training of its of- ficers [regarding] the use of deadly force and police-on-police confrontations.”110 The court granted the MTA’s motion for a summary judgment, because “no rational jury could conclude that the standard for municipal liability, under a failure to train theory or any other theory, has been met.”111 As for the city’s liability on the plaintiff ’s failure-to-train claim, the plaintiff argued that, based on a study by the RAND Corp., (RAND), which had identified deficiencies in training, the city “had a continuing common law and contractual duty to the MTA to apprise the MTA of the purported deficiencies in its training uncovered by RAND.”112 However, the court held in favor of the city, because “[a] municipality that only trained and does not employ the constitutional wrongdoer . . . cannot be held liable for failure to train.”113 In addition, the “City had no control over Gentile and no responsibility to continue training him….”114 Thus, the court granted the city’s motion for a sum- mary judgment on the § 1983 claim for failure to train Gentile, as well as on the plaintiff ’s negligence claim against the city for alleged deficiencies in training.115 107 Id. at 252 (citations omitted) (some internal quotation marks omitted). 108 Id. (citations omitted) (some internal quotation marks omitted). 109 Id. at 254. 110 Id. 111 Id. at 255. 112 Id. at 258. 113 Id. at 259 (citations omitted). 114 Id. at 260. 115 Id. at 261. Although the court ruled on other claims that the decedent’s estate made against the individual defendants under state law, (see id. at 263-277), after the court’s decisions on the motions for summary judgment, the plaintiff ’s claims that survived were “the exces- sive force, battery, and wrongful death claims against Officer Gentile; the related vicarious liability claim against the MTA; and the negli- gence, wrongful death, and GML § 205-e claims against Cafarella (based upon Penal Law Section 190.25).” Id. at 277. Amendments and Monell claims against the MTA and the city for inadequate training of Gentile and Ramos.99 In addressing the plaintiff ’s § 1983 claim against Gentile, Ramos, the MTA, and the city for the use of excessive force, the court held that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”100 A violation of the Fourth Amendment occurs when a police of- ficer’s use of force “is objectively unreasonable ‘in light of the facts and circumstances confronting [the officer], without re- gard to [the officer’s] underlying intent or motivation.’”101 As for the use of deadly force, for purposes either of the Fourth Amendment or qualified immunity, the “objective reasonable- ness inquiry . . . ‘depends only upon the officer’s knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.’”102 On the issue of whether Officer Gentile had qualified im- munity, the court concluded that there were genuine issues of material fact in dispute that precluded a pre-trial finding that Gentile’s use of deadly force was objectively reasonable for quali- fied immunity.103 On the other hand, Officer Ramos was entitled to a summary judgment on his defense of qualified immunity. Ramos acted when he “saw an armed man in plainclothes and, in an attempt to ‘subdue what [Ramos] assumed was a threat,’ grabbed the man’s right shoulder and grasped for the rifle, which was pointed downward at that moment.”104 In granting Officer Ramos’s motion for a summary judgment, the court held that, “even drawing all reasonable inferences in plaintiff ’s favor, no rational jury could find that Ramos’s de minimis use of force was objectively unreasonable.”105 In addition to the survival of the plaintiff ’s claim against Officer Gentile for the use of excessive force, the remaining issues were the MTA’s and the city’s liability under § 1983. The MTA and the city successfully argued that the plaintiff “failed to establish the existence of any municipal policy or custom that caused the alleged violation of Breitkopf ’s civil rights.”106 The court agreed and granted the MTA and the city a summary judgment on the plaintiff ’s Monell claims. As for the plaintiff ’s § 1983 failure-to-train claim against the MTA and the city, a failure to train “may constitute an of- ficial policy or custom if the failure amounts to ‘deliberate in- difference’ to the rights of those with whom the [municipal] 99 Id. at 239. The plaintiff also sued Gentile and Ramos for battery and wrongful death against, sued the MTA based on the doctrine of respondeat superior, and sued other defendants for negligence and wrongful death. Id. at 239-240. 100 Id. at 241 (citations omitted) (some internal quotation marks omitted). 101 Id. at 242 (citation omitted) (some internal quotation marks omitted). 102 Id. at 243 (citations omitted) (some internal quotation marks omitted). 103 Id. at 248. 104 Id. at 245 (citation omitted). 105 Id. (citation omitted). 106 Id. at 251.