Police use of force is currently the hottest topic in the news. On August 9, 2014, a teenager named Michael Brown was shot and killed by a police officer in the St. Louis suburb of Ferguson. Though the events that led to his shooting are still disputed, two facts are now clear: (1) Brown was unarmed, and (2) he was shot six times, including twice in the head.
In response to Brown's death, Ferguson residents launched immediate street protests, to which local and state police responded with massive, militarized force. Tear gas, smoke grenades, rubber bullets, and sonic cannons have been used against the demonstrators who have remained - with a few exceptions - peaceful but defiant.
These events have captivated the country. #Ferguson has been the top trending hashtag on Twitter for more than a week now. News outlets like MSNBC and CNN have run live coverage late into the night from the scene of the demonstrations. Images of gas clouds, injured protesters, and heavily-armed police pointing weapons at civilians in Ferguson have now become iconic.
The Fourth Amendment to the U.S. Constitution regulates the use of force by police officers, from individual confrontations and arrests to large scale operations like riot control. The Amendment prohibits unreasonable searches and seizures. Courts have interpreted the term "seizure," to include nearly any police interference with a citizen's bodily freedom or integrity. When people sue police officers for using excessive force, they do so under the Fourth Amendment.
Lawsuits against police officers and police departments are frequently unsuccessful. It is difficult to prove that police officers used excessive force because they are held to a relatively deferential "reasonableness" standard. If the actions of the officer are deemed to have been reasonable at the time of the incident - even if in hindsight they seem quite unreasonable - the police officer is not held liable for causing harm.
The rules and principles applied to Fourth Amendment excessive force cases are reasonably well-established. Though there are occasional modifications and exceptions created depending on the circumstances (such as "Terry stops"), excessive force is not, generally speaking, uncharted legal ground.
However, sometimes new issues arise. New policies, procedures, and tactics adopted by police forces can create novel legal questions to answer. For example, the Louisville Metro Police Department has adopted a "matrix" to determine whether the service of search or arrest warrants requires the use of a SWAT team. The matrix is a spreadsheet with certain threat criteria, each assigned a point value. If a suspect or his residence carries enough threats and therefore reaches a certain point score, the SWAT team is sent in. Warrants are now regularly served by the LMPD SWAT team.
This matrix has been the subject of at least two lawsuits in the Sixth Circuit over recent years. The first arose from a 1997 Louisville SWAT raid. While serving an arrest warrant, police confronted Larry Whitlow, who they alleged pointed an unloaded gun at them. The police shot Mr. Whitlow dead, and his estate sued, arguing that the police used excessive force and were poorly trained and supervised. The trial court granted summary judgment to the police and dismissed Mr. Whitlow's case.
The Sixth Circuit Court of Appeals upheld the trial court's ruling in what is called an "unpublished" opinion. Whitlow v. City of Louisville, 39 Fed. Appx. 297 (6th Cir. 2002). In theory, these opinions are meant to resolve the case at hand without setting controlling precedent in other cases. The Sixth Circuit allows lawyers to cite to unpublished cases in their briefing with the understanding that the court is not bound by them.
The unpublished Whitlow opinion assumed, to some extent, that the use of the SWAT matrix by Louisville police was faulty. However, the use or misuse of the matrix wasn't dispositive, because Mr. Whitlow pointed a gun at the police officers serving the warrant (an allegation the court accepted as fact). His actions - not the misuse of the matrix - were the proximate cause of the SWAT team's use of force and his death, the court reasoned.
The Sixth Circuit in Whitlow is not very instructive on the issue of pre-raid police procedure. It did not actually address whether a misuse of the SWAT matrix could constitute a constitutional violation or how severe such misuse had to be. And the Whitlow opinion is "unpublished," so any discussion of the matrix should only be "instructive" to future panels, not considered as binding precedent.
However, several years later, the use of the SWAT matrix by Louisville police became the subject of another lawsuit. In 2007, Louisville police used the matrix to approve a SWAT raid on the home of Sharon Ramage, the mother of a man suspected of child pornography because he developed photos of himself taking a bath with his son. A 35-man SWAT team stormed Ms. Ramage's home with a flash bang grenade, battering rams, and guns drawn. She was handcuffed and held at gunpoint while the police searched (for five hours) the otherwise empty house, finding no incriminating evidence. Her son was arrested peacefully the next day, but obscenity charges against him were ultimately dismissed.
Ms. Ramage filed suit, alleging that her Fourth Amendment rights were violated by an excessive use of police force. She argued that police reliance on the matrix was unreasonable because an actual investigation of her property would have revealed that she posed little threat to them, and the SWAT team's actions during the raid itself were excessively violent. Some of Ms. Ramage's claims were dismissed in summary judgment, and a jury ruled against her on the remaining claims.
On appeal, the Sixth Circuit Court of Appeals also ruled against Ms. Ramage. In doing so, the court very briefly addressed the use of the police matrix, relying entirely on the Whitlow case to find that it was not "per se unconstitutional." The court wrote:
This court has never directly addressed this issue before, nor does it appear that any other federal court has done so. In Whitlow v. City of Louisville, 39 F. App'x 297, 307 n.1 (6th Cir. 2002), which involved similar facts with respect to the completion of a Risk Assessment Matrix prior to execution of a search warrant by a SWAT team, we held that the use of the matrix without additional investigation into the context of the factors was at worst negligence, which did not support municipal liability. We never suggested that the use of a matrix could be per se unconstitutional. Based on this precedent, we find no error in the use of the matrix here.
Ramage v. Louisville/Jefferson County Metro Gov't, 520 Fed. Appx. 341, 345-346 (6th Cir. 2013).
"Based on this precedent" is interesting language for the court to use considering that Whitlow is not a published case, and is therefore not actually precedent. The court in Ramage spent just two brief paragraphs discussing the matrix, and made no effort to analyze whether or not it was reasonable for the police to rely upon it to send in the SWAT team considering the home they raided was easily accessible and occupied only by an unarmed, elderly woman. Instead, the court relied entirely on a previous, unpublished opinion to brush the issue aside.
Ramage is also an unpublished opinion, which means there remains no published, binding precedent in the Sixth Circuit on whether the use of a spreadsheet - rather than a more thorough investigation - to determine the need for a SWAT team to serve a warrant is reasonable under the Fourth Amendment.
The Fourth Amendment "reasonableness" standard is deferential to police actions already. Relying upon unpublished opinions and foregoing substantial analysis to rule against plaintiffs suggests courts will go beyond the reasonableness standard in order to dismiss excessive force claims. This deference to executive authority, built, at least partially, on questionable judicial authority, makes it less likely that police officers will be held accountable for unreasonable actions in the future.
Disclosure: the plaintiff in Ramage was represented by my current law firm, Clay Daniel Walton & Adams, led by Daniel Canon. I provided assistance as a law clerk.