Establishing venue: Virginia Beach, VA Saturday September 29, 2012 at 1a.m.
UNDER EXIGENT CIRCUMSTANCES
Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) * This Is solely used in a case where there Is a suspect either getting out of a car or running out of a car per say, trying to evade authorities. * In this particular case officers respond to a drug activity call on the corner of navy and Main Street. The suspect, a black male, wearing blue jeans and a white t-shirt was seen leaving a dark shady area with something in hand. Responding to the call, Officers A and B drive to the scene at the corner of navy and Main Street in a Marked Police Unit. The suspect sees this and almost immediately drops a small brown paper bag while trying to flee the scene. Officers acted upon impulse and started running for the suspect. Officer B observes him drop the bag and persues the suspect on foot alongside Officer A. The officers quickly acted and hunted down the suspect in his attempt to flee the scene. Officers speedily apprehended the suspect.
The Supreme Court held that excessive force claims brought under section 1983 are not governed by a single, generic stan-dard.9 Analysis for this type of claim must begin with identification of the specific constitutional right allegedly violated by the use of force. * After the suspect was apprehended, (Name now known now as John Doe) the officers scurry back to the squad car for further questioning. (With the officers backs facing each other) Officer B has John Doe on the back of the squad car with his hands flat the trunk of the squad car doing normal procedure. Officer B tells John Doe to stop taking his hands off of the trunk of the car not once but twice. “For safety precautions officers have individuals either keep hands on their own car or squad car while doing pat downs for one so that the officer knows that he is safe and for two that he can follow protocol with the stop/arrest that he/she is doing.”
Malicious Prosecution A malicious prosecution claim asserts that the officer wrongly deprived the victim of the Fourteenth Amendment right to liberty. To win this type of claim, the victim must show four things: 1) the defendant police officer commenced a criminal proceeding; 2) the proceeding ended in the victim's favor (that is, no conviction); 3) there was no probable cause; and 4) the proceeding was brought with malice toward the victim. As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings. There are four stages of “Excessive Force”, they are verbal, physical, non-deadly and deadly forces. * After repeatedly telling John Doe to keep his hands on the trunk of the squad car the 3rd time resulted in a small scuffle and Officer B punches the suspect John Doe, (Once in belly once in head) with a closed fist. Thus after the suspect collapses. The Officers immediately call dispatch for EMT.
THE QUALIFIED IMMUNITY DEFENSE
Defense attorneys representing a police officer for any of these claims will raise a defense of qualified immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense will defeat a claim against the officer if the officer's conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim's constitutional rights, and produced some injury or damages to the victim.
DID THE DEFENDANT ACT UNDER COLOR OF LAW? Liability under 42 U.S.C §1983 does not turn on whether a defendant acted in the course and scope of employment but rather, whether the defendant acted “under color of state law.” The analysis of whether a defendant acted under color of law is based on the totality of the circumstances. Factors a court will consider include: a) Whether the defendant was on duty/off duty; in uniform or out of uniform; b) Whether departmental issued or approved equipment was involved, i.e., police gun, badge, etc. c) Whether the defendant identified himself as a municipal official or invoked the authority of his office, i.e., stop, I’m a cop d) Whether the departmental rules or regulations permitted or prohibited the defendant’s actions or required that the defendant act while off duty; if the incident occurred while on an “off-duty job,” e) Whether the department approved it or whether departmental approval was even required; and how close was the defendant’s conduct to type he or she routinely performed while on duty and whether the defendant’s motivation was employment related or involved a purely personal or private pursuit. * While Officer B Is aiding John Doe until EMT came, Officer A walks along the pathway to go recover the bag that the suspect dropped early in the foot pursuit. Officer A ONLY recovers a PEANUTBUTTER and JELLY SANDWHICH from the brown bag that the suspect dropped prior to the foot chase. EMT came short after and took the suspect to get the proper care. Both officers show up to John doe’s hospital room (with him still unconscious) not to long after he arrived there. The nurse arrived in the room and started to cut away the suspects clothing for their prep when she discovered 1lb of cocaine hidden in John doe’s socks. (While officers were both in the room) DASH CAMERA CAUGHT NOTHING * Officer A saw nothing happen and just heard commotion * Officer B remembers hitting the suspect ONLY two times, once in head and once in the belly with a closed fist. * Suspect remembers nothing, Just being hit and waking up in the hospital * CONCLUSION 1) Everything was standard how the officers handled the whole situation. a) Officers followed protocol 2) The suspect was defiant and not obeying authority. b) Had reason to apprehend the suspect because a witness seen him doing drug related activities in a dark, shady area. c) Was not compliant with what Officer B was telling him and suspect said, “He had no reason for running”. d) Suspect was gave multiple VERBAL WARNINGS to keep his hands on the trunk. e) The negligent behavior of John Doe not obeying Officer B’s authority resulted in the worst possible thing for him. 3) Upon the stages of excessive force on page 3, the first paragraph it states the use of force used is nowhere near where it could’ve been in this type of situation. 4) The Officer(s) are not to be accused for excessive force because the right type of force was used for the unruly suspect. 5) The Officer(s) are not to be accused of any type of assault charge because everything was justifiable about the incident. Even though its unfortunate he went unconscious the officer (Officer B) was in the right. Establishing Venue: Virginia Beach, VA Saturday September 29, 2012 at 1a.m.
WORKS CITED * http://civilrights.findlaw.com/civil-rights-overview/police-misconduct-and-civil-rights.html * http://www.constitution.org/brief/forsythe_42-1983.htm * http://mnbenchbar.com/2011/07/excessive-force-claims-disentangling-constitutional-standards/
