Police, The Fourth Amendment, Qualified Immunity

Is police violation of police policy relevant to a 4A claim?

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Regular readers here know that 4A means the Fourth Amendment, which is part of the U.S. Constitution and is “national law” in the U.S. All across the U.S., 4A is supposed to protect people against certain searches and seizures made by government agents (which, these days, mostly means police officers).

Because 4A is national in its geographic scope, local police departments can’t do anything to diminish the 4A rights of people in their local jurisdictions. A local police department cannot suspend 4A because they believe that it restricts the police too much.

On the other hand, a local police department can effectively expand 4A rights. For example, a police department can make a policy against using confidential informants to get search warrants. A local police department can make a policy that its officers should not arrest for minor misdemeanors. A local police dapartment can make a policy that it will not shoot dogs during search warrant service. Many, many more examples of things that police departments could do to expand rights against search and seizure could be imagined.

However, when a police department does make a policy that effectively expands 4A, it does not mean that the police department has changed the U.S. Constitution itself. As a consequence, these police department policies do not give people the right to bring Constitutional claims (or any legal claims) against the police. Rather, the remedy is supposed to be that when an officer violates the policy then the officer is punished.

These police policies can be helpful in places where the police are sincere about finding actual violations and meting out fair punishments. On the other hand, there is a danger that the policy, and findings about violation of the policy, can be used by the police as a “dog and pony show” to discourage potential civil claimants from bringing lawsuits, or to turn public opinion against those who do bring civil claims.

Against this backdrop comes an interesting case out of a federal district court in Illinois called: SCOTT v. SUELTER, Case No. 09-CV-1189 (C.D. Illinois, May 20, 2013). In this case, the defendants are (or were?) police officers who apparently were found to have violated Peoria police policy in some unspecified incident. This incident lead plaintiff to sue under section 1983, based on violation of 4A. Defendant wanted to exclude any evidence about the violations of police policy found. Plaintiff counter-argued that the police violations show malicious intent by the police officers and should be considered by the jury in setting punitive damages. Judge McCuskey decided to exclude the evidence.

My comment is that this is a tough issue. There is at least some merit to the punitive damages / malicious intent argument. Perhaps if, at trial, the defendants testify that they had only good intentions in their minds, then this might “open the door” to bring back the policy violation evidence for the jury to weigh against the testimony about good intentions.

Written by Burgers Allday

May 28, 2013 at 7:38 am

Posted in Uncategorized

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