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24 TCRP LRD 58 fronting [the officer], without regard to [the officerâs] underlying intent or motivation.ââ303 Determining whether an officerâs use of deadly force was ex- cessive ââdepends only upon the officerâs knowledge of circum- stances immediately prior to and at the moment that [the of- ficer] made the split-second decision to employ deadly force.ââ304 B. Factors that Determine Whether the Force Used Was Excessive The courtâs opinion in Fuller v. Metro Atlanta RTA305 identi- fies some of the factors that are pertinent to deciding whether an officerâs use of force in a particular case was excessive. In August 2015, Fuller and two other persons, (Jackson and Williams), en- tered a MARTA station. After Jackson tapped her Breeze Card to pay her fare, Fuller followed her through the fare gate with- out paying the fare, all of which video surveillance recorded and Sergeant McWilliams observed. During an attempted arrest of Fuller, Sargent McWilliams shot Fuller with his Taser. Fuller sued for the use of excessive force in violation of the Fourth Amendment, as well as under state law for assault and battery and the infliction of emotional distress. On Fullerâs claim against Sergeant McWilliams, the court had to decide whether the level and type of force the officer used was âobjectively rea- sonableâ under the Fourth Amendment.306 Such a determina- tion ârequires balancing the nature and quality of the intru- sion on the individualâs rights with the government interests at stakeâ307 and deciding âwhether the officersâ conduct when mak- ing the arrest âwas objectively reasonable or if it was an over- reactive, disproportionate actionââ in relation to the severity of the crime and the suspectâs conduct at the time of the arrest.308 Other factors the court considered were whether Fuller âposed an immediate threatâ to the officersâ safety or the safety of others and whether Fuller was resisting arrest or attempting to flee.309 In denying the defendantsâ motion for a summary judgment, first, the court ruled that Fullerâs misdemeanor charges for dis- orderly conduct were not serious offenses.310 Second, based on Fullerâs version of what happened and the surveillance video, the officers used force that was ââunnecessary and disproportion- ateââ and, consequently, âexcessive under the circumstances.â311 303 Brietkopf, 41 F. Supp.3d at 242 (citations omitted) (some internal quotation marks omitted). 304 Id. at 243 (citations omitted) (some internal quotation marks omitted). 305 2018 U.S. Dist. LEXIS 233659, at *1 (N.D. Ga. 2018). See also, Fuller v. MARTA, 810 Fed. Appx. 781, at *1 (11th Cir. 2020) (holding that the court lacked jurisdiction to consider an interlocutory appeal brought by defendantsâa transit authority and two of its officersâ which challenged the denial of their motion for summary judgment based on qualified and official immunity, because the defendantsâ argu- ments merely raised questions of the sufficiency of the evidence). 306 Fuller, 2018 U.S. Dist. LEXIS 233659, at *9. 307 Id. at *10 (citations omitted). 308 Id. at *11 (citations omitted). 309 Id. (citations omitted). 310 Id. at *13. 311 Id. at *14 (citation omitted). F. Whether Video Surveillance of Persons in a Public Space Violates the Fourth Amendment It has been held that video surveillance of a person in public or in an area that can be viewed by members of the public does not infringe a personâs civil liberty as an unlawful, warrantless search. A case in point is Hoffman v. City of New York.297 The plaintiff alleged that the City of New York and the Metropolitan Transportation Authority (MTA), in a conspiracy with private persons, caused the transit police to conduct âbaseless fraudu- lent visual tapingâ of Hoffman for eleven years on public buses and subways in the city.298 The court held that â[w]hether or not a person has a constitutionally protected reasonable expectation of privacy is part and parcel of Fourth Amendment analysis,â because â[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amend- ment protection.â299 The plaintiff did not have a âreasonable expectation of pri- vacyâ protected by the Fourth Amendment, because âthe sur- veillance and taping of Plaintiff took place in a physically non- intrusive manner while Plaintiff was on public transportation and knowingly exposing herself to the public.â300 Moreover, the plaintiff failed to allege that âany official policy or custom of the City of New York or the MTA ⦠caused her constitutional rights to be violated.â301 VII. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR THE USE OF EXCESSIVE FORCE A. Whether the Force Used Was âObjectively Unreasonableâ To prove a constitutional violation under § 1983 for the use of excessive force, a âplaintiff must show that the force used was âobjectively unreasonableâ under the Fourth Amendment.â 302 As other courts have held, the ââuse of force is contrary to the Fourth Amendmentââ when the force that was used was ââobjec- tively unreasonable in light of the facts and circumstances con- 297 1998 U.S. Dist. LEXIS 7459, at *1 (E.D. N.Y. 1998). 298 Id. at *1 (internal quotation marks omitted). 299 Id. *8 (citations omitted). 300 Id. at *8-9. 301 Id. at *7. 302 Kirk, 2001 U.S. Dist. LEXIS 2786, at *31. The court noted that â[t]he elements of assault and battery by police officers are identical to the elements of excessive force under 42 U.S.C. § 1983.â Id. at *29 (cita- tions omitted). For an assault claim, a plaintiff âmust allege facts that support a finding that the defendant intentionally placed the plaintiff in reasonable fear of imminent harmful or offensive bodily contact,â whereas a claim for battery requires that âa plaintiff must introduce evi- dence tending to show that the defendant intentionally and wrongfully engaged in physical contact with the plaintiff without the plaintiff âs con- sent.â Id. at *29-30 (citations omitted).
TCRP LRD 58 23 ality, on the basis of the individual circumstances.ââ290 In doing so, a court must balance three factors: (1) the gravity of the pub- lic concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.291 The Maryland Court of Appeals was not persuaded that MTAâs âprimary purposeâ in directing officers to conduct fare sweeps on Light Rail trains is apparent from the record of the suppression hearing. There was no foundational testimony showing that the officers know, as a matter of MTA policy, what the purpose of a fare sweep is, much less the âprimary purposeâ of this type of fare inspection. Nor did the officers identify any particular purpose of a fare sweep as MTAâs primary purpose[] or testify that there are no other purposes of a fare sweep beyond those defense counsel asked about.292 The court held that the State failed to establish that the spe- cial needs exception applied.293 The court also rejected the Stateâs argument that the search was constitutional based on the attenuation doctrine, i.e., that âthe discovery of the warrant for Carterâs arrest attenuated the taint of the unlawful seizure.â294 As discussed in Section VI. C, supra, if the attenuation doctrine applies, then evidence is admis- sible that the exclusionary rule would have precluded. Whether the attenuation doctrine applies depends on (1) the temporal proximity between the unlawful conduct and the discovery of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. The Maryland Court of Appeals, focusing on the third element, held that the discovery of an outstanding warrant did not âattenuate the taint of an illegal agency program that requires officers to search for open warrants as part of the program.â295 The court concluded by stating that its âholding reinforces for MTA and all other state and local agencies that they should proceed with caution when implementing a program of war- rantless, suspicionless seizures.â296 290 Id. (citation omitted). 291 Id. (citations omitted) (quotation marks omitted). 292 Id., 472 Md. at 79, 244 A.3d at 1066. The Maryland Court of Appeals found that the âdifferences between a fare sweep conducted by multiple officers and a fare inspection conducted by an individual offi- cer suggest the possibility (but in no way conclusively demonstrate) that a different primary purpose underlies these methods of fare enforce- ment.â Id., 472 Md. at 68-69, 244 A.3d at 1059 (footnote omitted). 293 Id., 472 Md. at 71, 244 A.3d at 1061. The court âconclude[d] that the record is insufficient to determine the primary purpose of a fare sweep. Because we do not know the primary purpose of a fare sweep, we also do not know whether it is necessary to undertake the three-part balancing analysis set forth in Brown v. Texas, 443 U.S. at 51, let alone what the result of that analysis would be. In short, we cannot say one way or the other whether the special needs exception appliesâ¦.â Id. 294 Id. 295 Id., 472 Md. at 75, 244 A.3d at 1063. 296 Id., 472 Md. at 76, 244 A.3d at 1064. train and announce that all passengers must show their tickets or passes.â281 During one such sweep, Carter told an officer that he did not have a ticket. After the officer obtained identifying informa- tion on Carter, which disclosed the existence of a warrant for Carterâs arrest, the officers discovered, while attempting to arrest Carter on the outstanding warrant, that Carter was carrying a gun. Carter argued that the fare sweep constituted a warrantless seizure that was not based on reasonable suspicion. The Maryland Court of Appeals held that the State failed to establish at a suppression hearing that Carterâs seizure was con- stitutional. The State conceded that Corporal Russell âseizedâ Carter when announcing the fare sweep, because âduring a fare sweep a passenger generally is not free to leave ... without show- ing proof-of-payment.â282 However, at the time of the sweep, the officer did not suspect âthat Carter had committed any criminal offense, including fare evasion.â283 The court held that Carterâs seizure violated the Fourth Amendment, unless the fare sweep came within one of the recognized exceptions to the warrant requirement, and, if the fare sweep did not, then Carterâs subse- quent admission that he did not have a ticket âwas the fruit of an unlawful detention.â284 Besides arguing unsuccessfully that Carter had consented to the search, the State argued that the fare sweep was âconstitu- tional under the âspecial needsâ exception to the Fourth Amend- ment warrant requirement.â285 As discussed in Section VI. D, supra, pursuant to the special needs doctrine, the âcourts may uphold the constitutionality of a program of seizures without individualized suspicion, where the program is designed to serve âspecial governmental needs, beyond the normal need for law enforcement,ââ286 such as âsobriety checkpoints along state roadsâ¦.â287 In Carter, the court applied a two-step analysis to determine whether the special needs exception applied. [T]he âprimary purposeâ served by the program must be an objec- tive other than the governmental bodyâs âgeneral interest in crime control.â ⦠If the primary purpose of the program is to advance the general interest in crime control â in other words, to âuncover evidence of ordinary criminal wrongdoingâ ⦠â then the program is presumptively unconstitutional under the Fourth Amendment.288 âIf the State establishes that the program is not âa general crime control device,â ⦠then the analysis proceeds to the sec- ond step.â289 The second step requires an evaluation of the fare sweep programâs ââreasonableness, [and] hence, its constitution- 281 Carter, 472 Md. at 44, 244 A.3d at 1045. 282 Id., 472 Md. at 57, 244 A.3d at 1053 (internal quotation marks omitted). 283 Id., 472 Md. at 57-58, 244 A.3d at 1053. 284 Id., 472 Md. at 58, 244 A.3d at 1053. 285 Id., 472 Md. at 63, 244 A.3d at 1056. 286 Id. (citation omitted). 287 Id. (citation omitted). 288 Id., 472 Md. at 64, 244 A.3d at 1057 (citations omitted). 289 Id., 472 Md. at 65, 244 A.3d at 1057 (citations omitted).