Federal Criminal & Civil Remedies for Unconstitutional Conduct

1. Federal Criminal & Civil Remedies for Unconstitutional Conduct • Title 42 USC Section 1982 • Under Color of State Law

2. Immunity • Absolute Immunity • Judges • Legislators • Prosecutors • Statements made within the context of a judicial hearing

3. Immunity • Qualified Immunity • Violation was not clearly established at time of the act • A reasonable public official confronted with these facts could have believed that his of her conduct conformed to the relevant standard.

4. Immunity • State Tort Immunity • Willful and Wanton Misconduct • Conscious Disregard for the Safety of Others

5. Graham v. Connor (1989) page 718 • Questions to be answered • What is the improper police conduct? • What other case that we have discussed is used as the foundation for this case? • What is the proper Amendment to consider when addressing the improper police misconduct in this case? • What is the standard to be applied in this case? As opposed to what other standard? • Issue? Be careful, the true issue is not in the regular spot. • Holding?

6. Factors in Determining Reasonablenessin Police Use of Force Cases • Severity of crime • Suspect poses an immediate threat • Resisting arrest or attempting to flee

7. Mental State for Excessive Use of Force for Different B of Rs Applications • Police Officers Use of Force is examined by the courts using a reasonableness standard necessitated because this is a seizure and therefore the 4th Amendment Controls. “The right of the people to be secure in their persons … against unreasonable … seizures, shall not be violated…”

8. Mental State for Excessive Use of Force for Different B of Rs Applications • Correctional Officers’ Use of Force is examined by the courts using a willful and wanton standard necessitated because excessive force after conviction is punishment and therefore the 8th Amendment Controls. “(C)ruel and unusual punishment (shall not be) inflicted.” • Cruel and unusual indicates intentional behavior.

9. Police Officer in Liable Under Sec. 1983 • If their comrades commit brutality and they take no action to stop it.

10. Liability of Private Individuals Based on Section 1983 • Act in concert with police. • Act under State compulsion or with significant State encouragement • Perform a public function (private corporation operating State prison.)

11. Criminal Responsibility Title 18 USC 242 • Act under color of law (not just State Law) • Possessed a willful intent (mental state) • Violated a constitutional right (that has been) • Previously made specific through judicial decision. LESS THAN 2% OF CASES ARE PROSECUTED

12. 14th Amendment • … nor shall any State deprive any person of life, liberty, or property without due process of law: nor deny to any person within its jurisdiction the equal protection of the laws.

13. Protection Afforded by the 14th Amendment • Substantive Due Process • Culpable Action DeShaney v. Winnebago County Department of Social Services = No constitutional duty of the public official to protect the public from harm except: • Discriminatory Denial of Police Protection • Jeffrey Dahmer • Duty to Protect Persons in Custody – People are no longer capable of taking care of themselves • Kneipp v. City of Philadelphia

14. Equal Protection of the Law • Deliberately treating one person differently from another because; • A person’s membership in a protected class • A desire to punish the person for exercising a constitutional right • Malicious intent to injure the person out of spite.

15. Law Enforcement Professional’s Constitutional Rights in the Workplace • 1st Amendment Rights • Limited rights after Garcetti v. Ceballos • 4th Amendment Rights • Limited in employment case • 5th Amendment Rights • Garrity