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CHAPTER ELEVEN
CONSTITUTIONAL VIOLATIONS II:
OTHER REMEDIES AGAINST OFFICIAL MISCONDUCT
Learning Objectives
After studying this chapter, students should be able to:
1. Understand that most police misconduct can also be a crime. Know that police are rarely
charged or convicted for criminal misconduct.
2. Know that civil actions against (a) the federal government and its officers; (b) local,
4. Know the role of Civil Rights Act actions in holding law enforcement officials
5. Know that plaintiffs can sue local governments instead of, or in addition to, suing local
officers. Understand the complexities and limitations of suing local governments.
6. Understand that the Constitution places no duty on officers to protect individuals from
8. Know the role of administrative action in remedying misconduct.
Lesson Plan
I. Criminal Actions
Learning Objective 1: Understand that most police misconduct can also be a crime. Know that
police are rarely charged or convicted for criminal misconduct
Media Tool
“Man’s Death Puts Minneapolis Police Tactic Under Scrutiny”
http://www.startribune.com/local/minneapolis/138821999.html
o Video of man tased by police officers followed by discussion of how the
police handled the situation.
o Discussion: Discuss how the police handled the man in the video. How
should such events be handled? What might they have done differently?
Class Discussion/Activity
In order for police officers to be charged with a crime the prosecution must
prove criminal intent. How difficult do you think that this is? Students can look
online for police recent misconduct cases and discuss those cases.
What If Scenario
What if law enforcement officers could not be charged with a crime? What
impacts do you think would be felt at the local level? State level? Federal level?
A. Most officers’ misconduct might also be a crime.
B. Most police officers aren’t charged with, convicted of, or punished for criminal actions
because:
1. Criminal intent doesn’t exist, or it’s difficult to prove beyond a reasonable doubt;
2. Prosecutors and juries are unwilling to convict officers for “doing their job.”
3. There’s a lack of sympathy for possible criminals and/or those they associate with.
II. Civil Actions
Learning Objective 2: Know that civil actions against (a) the federal government and its
officers; (b) local, county, and state officers, law enforcement agencies, and government units;
and (c) other government employees are controlled by different statutes, court decisions, and
government units
Learning Objective 3: Understand constitutional tort actions (Bivens actions) against officers
and Federal Tort Claims Act actions against public institutions
Learning Objective 4: Know the role of Civil Rights Act actions in holding law enforcement
officials responsible for violating the constitutional rights of individuals. Understand the
limitations of lawsuits brought against states and their officers
Learning Objective 5: Know that plaintiffs can sue local governments instead of, or in addition
to, suing local officers. Understand the complexities and limitations of suing local governments.
3, 4, & 5
Media Tool
“SF to Face Trial for Officer’s Misconduct”
http://www.courthousenews.com/2013/09/26/61520.htm
o Article from the Courthouse News regarding a lawsuit by a man who was
wrongly incarcerated for 18 years.
o Discussion: Discuss whether the City of San Francisco should be held
accountable in this case? Why would the Superior Court Judge rule as she
did?
Class Discussion/Activity
Have students look up the states that do not allow citizens to bring suits against
them for constitutional violations of their officers. Discuss the differences between
these states. Discuss with students how your state handles claim such as these.
What If Scenario
What if civil actions were limited to one entity? For example, a person who had
experienced a violation of their constitutional rights could sue an officer, a local
government, a state, or the federal government but was not allowed to sue more
than one of these individuals or agencies. How might this impact civil actions?
A. Most plaintiffs who sue officers and governments want compensation for injuries caused
by police misconduct.
1. A tort action
B. Plaintiffs can sue any or all of the following:
1. Individual law enforcement officers
3. Law enforcement agencies
4. Governments responsible for officers and departments (towns, cities, counties, states,
and the U.S. government)
C. They can sue in U.S. courts and state courts.
D. Lawsuits against U.S. officers and the U.S. Government.
1. Lawsuits against officers
(1) Individual federal officers are liable for their acts that violate plaintiffs’
(2) It’s difficult to win Bivens cases because of the defense of qualified immunity.
See Assignments 1, 2, & 3
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except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
(d) Courts also want to prevent frivolous lawsuits.
2. Lawsuits against the U.S. Government
a. Plaintiffs can pursue FTCA actions to sue the U.S. government.
(2) The U.S. government’s “deep pockets” make FTCA actions attractive.
(3) Plaintiffs can pursue both FTCA and Bivens actions.
E. Suing state officers.
1. State tort actions
a. Most illegal police acts are also state torts.
b. Tort law gives injured plaintiffs the right to recover damages.
c. State tort actions balance the need for officer discretion and protecting officers.
2. U.S. Civil Rights actions (§ 1983 actions)
a. Plaintiffs can go into federal courts to sue state, county, and municipal officers for
violations of their constitutional rights.
b. Elements of § 1983 include:
(2) Officers’ actions caused deprivation of a constitutional right.
c. Liability is for deliberate (not negligent or accidental) acts of officers.
d. Liability may be limited by the qualified immunity defense (same as Bivens and
FTCA).
F. Suing local governments
1. Local government tort actions
a. State and local governments are liable for their employees’ torts (respondeat
(1) Based on the need for effective law enforcement and (2) the need to avoid
2. Local government U.S. Civil Rights Act (§ 1983) actions against state and local
government
a. Elements of state and local government liability include:
(1) Officers acted according to either officially approved written policies or
unwritten customs.
b. It’s more complicated to prove government liability than an individual’s (even
though proving individual liability is also complicated).
III. Law Enforcement Duty to Protect
Learning Objective 6: Understand that the Constitution places no duty on officers to protect
individuals from each other, and that it doesn’t create a right of private parties to sue officers for
failing to prevent crime. Understand the “special relationship” and “state-created danger”
exceptions to the no-duty-to-protect rule.
10
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Learning Objective 7: Understand that judges enjoy absolute immunity, and prosecutors have
functional immunity.
Learning Objective 8: Know the role of administrative action in remedying misconduct
Media Tool
“No Duty to Protect”
http://dailycaller.com/2013/10/23/nra-president-james-porter-on-the-job-of-police-
no-duty-to-protect/
o National Rifle Association President article on the Second Amendment and
the “no duty to protect” ruling by the Supreme Court.
o Discussion: Discuss whether students agree or disagree with the NRA
President’s article. Why, specifically, do they support or not support the
stance of the NRA President? Does he make a good argument? Should
police have a duty to protect individual citizens?
Class Discussion/Activity
There are two exceptions to the no-duty-to-protect rule. Have students identify
these two exceptions and discuss what kind of situations qualify for these
exceptions.
What If Scenario
What if law enforcement officers did have an affirmative constitutional duty to
protect individuals from each other? Might it be more difficult to locate persons
willing to become law enforcement officers?
A. Law enforcement has no affirmative constitutional duty to protect individuals from each
other.
2. Only individuals in custody have a constitutional right to protection (special-
relationship exception).
(1) They require a special relationship plus a danger created by the state
(2) There are two exceptions:
(3) Three elements that most courts demand in order to impose civil liability on
government officers.
(a) Violence
(b) Affirmative action
(c) State of mind
B. “State-created danger” after DeShaney (1989)
1. Most cases fail to qualify because they do not meet the affirmative action standard.
C. “State-created danger” and domestic violence
1. Individuals have no constitutional right to have restraining orders enforced
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IV. Suing Judges and Prosecutors
Learning Objective 7: Know that judges enjoy absolute immunity, and prosecutors have
functional immunity.
Media Tool
“Wrongful Convictions” http://articles.chicagotribune.com/2013-10-14/news/ct-
met-juan-rivera-lawsuit-win-20131013_1_wrongful-convictions-dna-evidence-
dna-exonerations
o News article about judge’s ruling regarding an exonerated inmates efforts
to sue police and prosecutors.
o Discussion: Discuss the case. Should he be allowed to proceed with his
suit? Why/why not?
Class Discussion/Activity
Discuss absolute immunity for judges and functional immunity for prosecutors.
Why do students think that there is a difference? Should the immunities for either
be reduced or increased (for prosecutors)?
What If Scenario
What if you saw a judge take a bribe from a defendant and you were the victim in
the case? What would you do? What are your options?
A. Judges have absolute immunity from lawsuits.
1. The only remedy is either impeaching or voting them out of office.
B. Prosecutors have absolute immunity when acting as advocates for the state in criminal
prosecutions.
1. They have limited liability when acting as administrators or investigators.
C. Hurdles to suing officers and the government
1. People who sue the government or its officers rarely win.
2. Reasons for failure include:
a. It’s expensive.
b. It takes a long time.
c. Juries are more likely to believe police officers than plaintiffs.
V. Administrative Remedies
Learning Objective 8: Understand the role of administrative action in remedying misconduct.
See Assignment 4
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Class Discussion/Activity
Discuss with students how review boards function. Have them research
your local police department or other law enforcement agency and
determine which type of review exists for that agency. Discuss how the
local procedures are different and similar to those described in the text.
Which do the students believe are better and why?
A. There are two types of administrative remedies: internal review and external civilian
review.
B. Internal review is by internal affairs units (IAU) made up of department officers.
1. Internal review has four stages:
a. Intake – Intake officers accept complaints.
(1) First stage – The deliberating officers decide among four dispositions:
(a) Unfounded – The act didn’t take place.
(b) Exonerated – The act took place but was justified, lawful, and proper.
(c) Not sustained – There’s not enough evidence to prove the allegations in
the complaint.
(d) Sustained – The evidence proved the allegations.
(2) Next stage – The officers recommend disciplinary action for sustained
complaints.
(a) Oral reprimand
(b) Written reprimand
(c) Transfer
(d) Retraining
(3) Final stage – The recommendations are forwarded and moved up the chain of
command to the chief for final disposition.
2. Internal review has its critics.
a. Police can’t police themselves.
b. Some parts of the public don’t accept the legitimacy of self-supervision.
C. External review
1. Set up to overcome criticism of internal review: “Who will watch the watchman?”
2. Civilians outside the department review (or participate in reviewing) complaints.
3. Police don’t like civilian review.
See Assignment 5
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© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
b. Outsiders don’t understand police work.
c. It pierces the “blue curtain” that hides “real” police work from view.
4. The types of external review
a. The point in reviews when civilians (non-officers) participate varies.
(1) Collect facts
(3) Recommend disciplinary action to chief
(4) Review chief’s disposition
5. The effectiveness of civilian review
a. The definition of “effectiveness” varies.
(1) Controlling police misconduct
(3) Preserving public confidence in police
(4) Influencing police management by providing “feedback” from citizens
b. Civilian review rarely sustains complaints.
c. Sustained rates are similar to those in internal review.
d. The increased volume of complaints can mean either the level of misconduct or
the level of confidence in the review process has risen (San Francisco, for
example).
e. The number of incidents not reported isn’t known
Lecture Notes
For police officers to be charged with crimes, the prosecution must prove criminal intent.
Officers who believe they are enforcing the law are generally protected.
Civil lawsuits against federal officers were first accepted by the Court in 1971 and are called
constitutional tort (Bivens) actions. Civil lawsuits against the federal government for their
officers’ constitutional torts are called Federal Tort Claims Actions. Civil Rights Act Actions are
lawsuits against individuals in state and local law enforcement for violating someone’s
constitutional rights. Law enforcement officials are protected by qualified immunity from many
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© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
law enforcement’s job of protecting the public and official immunity limits liability to malicious
wrongdoing. Not all states allow citizens to bring suits against them for the constitutional
violations of their officers. These states give vicarious immunity to officers and other law
enforcement officials.
Courts have not imposed a constitutional duty to protect, and plaintiffs cannot sue officers when
they fail to prevent other individuals from committing crimes or violating their rights. There is an
exception to the no-affirmative-duty-to-protect rule. A special relationship exists between the
government and persons in their custody, and the state has a duty to protect them and prevent other
prisoners from injuring them or violating their rights. A special circumstance exists whereby the
government is held responsible for protecting people from state-created dangers.
Judges cannot be sued for misconduct due to their special status of absolute immunity and
Chapter Key Terms
criminal law: Prosecuting individual officers in criminal courts. (p. 414)
civil law: Suing the officer, the police department, or the government in civil courts. (p. 414)
internal and external departmental review: Disciplining the officer outside of the judicial
system. (p. 414)
tort action: Private lawsuit. (p. 415)
damages: A remedy in private lawsuits in the form of money for injuries. (p. 415)
civil action: A noncriminal case. (p. 415)
torts: Civil damages. (p. 419)
defense of official immunity: The rule that limits the liability of individual criminal justice
personnel if sued for willful or malicious wrongdoing when they are acting within the exercise of
their discretion. (p. 419)
Civil Rights Act (§ 1983) actions: Actions under federal law against state and local officers for
state-created-danger exception: A narrow exception in some states to the no-duty-to-protect
rule. (p. 424)
tort feasor: Wrong doer. (p. 435)
absolute immunity: The absence of liability for actions within the scope of duties. (p. 436)
functional immunity: The prosecutor’s immunity from a civil lawsuit depends on the function
blue curtain: The “barrier” that keeps police conduct from being exposed to police view and
scrutiny. (p. 442)
Assignments
1. Have students research news articles about police use of force incidents that have resulted in
lawsuits filed against police officers and police agencies. They can find articles in their local
newspapers or on the Internet. Based on what the articles report, discuss with students the legal
issues raised by these types of lawsuits. Identify how the good faith immunity defense may
relate to the incident. Notice whether the law suit is based on tort law or section 1983. Students
can also find articles about civil rights and tort lawsuits against police on the ACLU website.
2. Have students research the process for filing a complaint with their local police department
3. Discuss with students their general reaction to stories about police abuse and about the
relationship the community has with the police where they live. Do they think there is too
much media hype about these types of incidents? Or do they think the media is only reporting
the tip of the iceberg? Are lawsuits effective at making police officers and agencies
4. Have students’ research prosecutorial misconduct and write an argumentative essay in support
