Posted by: Robert Pinckley on Nov 1, 2020

Journal Issue Date: Nov/Dec 2020

Journal Name: Vol. 56 No. 9

My entire life I was raised never to question the motives of law enforcement. If they stopped me, they must have had a legitimate reason. As a white male, I never questioned that notion. I remember the moment when I first really understood the concept of systemic racism by law enforcement. It was August 2014. I was in a waiting area of Legislative Plaza passing time before a job interview with the General Assembly. In the background, the news station was running a story about an unarmed 18-year-old male who was shot by a police officer. Like many, I was angry and confused by a story that felt too familiar. Only weeks before the shooting of Michael Brown in Ferguson, Missouri, a 43-year-old father of six, was placed into a chokehold and suffocated by an officer. His name was Eric Garner. In the years since these incidents, the list of names has continued to grow: Tamir Rice, Eric Harris, Alton Sterling, Philando Castile, Breonna Taylor and now, George Floyd.1

While all of these cases are devastating, two have stood out in my memory. On July 17, 2014, Eric Garner was killed in a confrontation with police officers after he was accused of selling loose cigarettes. Eric Garner was able to state “I can’t breathe” 11 different times while he was held in a chokehold on the pavement. Nearly six years later, on May 25, 2020, George Floyd was killed in a confrontation with police officers after he was accused of using a counterfeit bill. George Floyd was held to the ground with a knee to his throat for nearly nine minutes while he repeatedly said, “I can’t breathe.” Both men were accused of non-violent crimes and both men met very violent ends at the hands of the police. More inexcusable to me were the other officers who stood by and watched the abuse of force happen. I believe that most officers are good people looking to do what is right for their community. However, as the philosopher John Stuart Mill once said, “Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”2

42 U.S.C. §1983 and Bivens v. Six Unknown Named Agents

The law governing a civil action against a government agency for the deprivation of rights is found at 42 U.S.C. §1983. Cases stemming from this statute — typically referred to as Section 1983 — allow a lawsuit to be brought against any person who acts “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory …” to cause or subject a person within a jurisdiction to the deprivation of a Constitutional right. The authority granted under this statute also grants the ability to bring a lawsuit against a local government agency as they are acting under the auspice of their state. Additionally, this ability to sue a government agency was extended to the federal government in 1971 by the Supreme Court of the United States in Bivens v. Six Unknown Named Agents.3 In Bivens, the Supreme Court held that an individual has an implied cause of action against a federal government official when that official violates the individual’s constitutional rights. 

Section 1983 and Bivens lawsuits encompass a complex and expanding area of litigation littered with numerous challenges that are in place to protect the government. In bringing a lawsuit against a government agency there is one massive hurdle that must be overcome by a plaintiff: Qualified Immunity. 

Qualified Immunity 

The Supreme Court of the United States has found that under the Doctrine of Qualified Immunity a government official performing a discretionary function is protected from civil liability as long as the conduct does not violate an established statutory or constitutional right known to a reasonable person.4 It is this qualified immunity that protects officers from the threat of constant lawsuits while fulfilling the responsibilities of their position. However, it is also this doctrine that allows for an officer to engage in misconduct and escape without repercussion. 

Under the Doctrine of Qualified Immunity officers are not required to defend their action or to argue their action was correct. Instead, an officer would need only to show that their actions were not unreasonable given the circumstances. In a number of Section 1983 or Bivens actions, this creates a nearly insurmountable barrier for a plaintiff. To be successful in overcoming the barriers of Qualified Immunity, a plaintiff must be able to show that the actions committed by an officer were so egregious that there is no disagreement amongst reasonably competent officers as to the misconduct. The Supreme Court has said, “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law… . Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.”5

It is apparent from the reactions following nearly every aforementioned incident of police force that there has been disagreement among those in the law enforcement community about the actions taken by the respective officers. However, as Qualified Immunity is granted to more and more officers who have used force to take the life of a citizen, the public outcry for accountability grows stronger. As recently as 2018, Supreme Court Justice Sonya Sotomayor argued in her dissent of Kisela v. Hughes that the doctrine of Qualified Immunity as it is currently interpreted by the Supreme Court “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”6 

In the most recent Supreme Court session earlier this year, there were eight Qualified Immunity cases pending before the Supreme Court. It would only take four of the nine justices to approve a case for a hearing. Thus far, Justice Sotomayor and Justice Thomas, two of the most ideologically divided justices, have called for the review of Qualified Immunity. However, on June 15, 2020, the court denied the chance to reconsider Qualified Immunity in Baxter v. Bracey.7 

The Use of Force

Law enforcement’s use of force has been the subject of scrutiny for decades. The United States Supreme Court’s jurisprudence on law enforcement use of force can be traced back to Tennessee. In Tennessee v. Garner, a constitutional challenge was brought against a state statute that granted officers the ability to use deadly force to stop a fleeing felon.8 The court found that law enforcement’s use of deadly force was an unconstitutional seizure under the Fourth Amendment and that force should only be used in situations where there is a significant threat of death or serious injury to the officer or to a member of the public.9 This rationale was extended by the Supreme Court to all uses of force by law enforcement, including less than lethal force, only a few years later. In Graham v. Connor, the Supreme Court held, “all claims that law enforcement officials have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.”10

As previously discussed, it is this “objective reasonableness” standard that creates significant issues for law enforcement officers and for those in the community seeking justice against law enforcement for abusing their powers. Families will rarely be able to establish municipal liability to recover for the misconduct of bad actors as officers are still protected under Qualified Immunity. On the other hand, officers will be accused of abuse and hiding behind the law and court system to protect themselves while they are able to systematically abuse members of the public. This dichotomy places an extreme amount of tension on relationships between officers and the communities they are entrusted to serve. To potentially improve these relationships, law enforcement agencies in Tennessee and around the country are considering the adoption of policies that require their officers to intervene when they observe misconduct. 

A Duty to Intervene

The appalling footage of George Floyd’s death does not end with the officer who used unnecessary force in his apprehension. Three other officers were present and failed to act. In another infamous occurrence of police brutality, Rodney King was beaten by officers of the Los Angeles Police Department. As these officers struck Mr. King approximately 33 times with their batons and kicked him approximately seven times, multiple other officers stood by and watched. While this failure to intervene on behalf of a fellow human being is challenging to explain from a moral standpoint, what liability exists for those who fail to act to prevent an officer from engaging in the use of unlawful, excessive force? 

As previously stated, most officers are protected from civil liability in a complaint of excessive use of force under the Doctrine of Qualified Immunity. However, the courts have found that there are circumstances when an officer may be held liable for his failure to protect a person from the excessive use of force by a fellow officer. The Sixth Circuit stated “Generally speaking, a police officer who fails to act to prevent the use of excessive force may be held liable when (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.”11 The Sixth Circuit’s rationale in this instance protects officers from liability when their counterparts quickly discharge their firearms, but does place some responsibility on them in the event that another officer is engaged in prolonged misconduct. 

Using the most recent abuse of force by the Minneapolis Police Department as an example, at least three other officers failed to act despite nine minutes of Mr. Floyd’s assertions that he could not breathe. The two-prong test provided by the Sixth Circuit is vital for analyzing the actions or inactions of the officers. The first prong, that an officer observed or had reason to know that excessive force was being used, is likely met. Under Tennessee law, chokeholds for police officers are prohibited under most circumstances.12 Therefore, the officer using his knee across Mr. Floyd’s neck was an unnecessary restraint and improper under Tennessee law. This is evident as two other officers were also restraining Mr. Floyd. In total, Mr. Floyd was being restrained by three officers while a fourth officer stood by observing the scene. All of these officers could hear Mr. Floyd’s claims of being unable to breathe. Each officer failed to act. The second prong, that the officers had the opportunity to act, is also met in these circumstances. This incident drastically differs from other incidents of police violence wherein a firearm is discharged. It is wholly unfair to expect a second officer to be able to intervene in some circumstances. Officers are frequently tasked with the difficult decision of whether to use force within fractions of a second. However, with nine minutes and frequent pleas from Mr. Floyd, every officer on the scene had an opportunity to step in and intervene to save Mr. Floyd’s life.

It is worth noting that this duty to intervene is not limited to just the Sixth Circuit. The United States Department of Justice has said an officer may be prosecuted for failing to intervene to stop a Constitutional violation.13 The criterion for prosecution by the Department of Justice mirrors the requirements from the Sixth Circuit. To prosecute an officer for failing to intervene, the government must show the officer was aware of the violation, had an opportunity to intervene, and failed to do so. Similarly, other circuits have held that officers who have the opportunity to intervene have an obligation to act. The Second Circuit has stated, “It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.”14

Across the country, jurisdictions are adopting new policies that require their officers to intervene. For example, on June 6, 2020, Police Chief Renee Hall from Dallas, Texas, announced a new policy that compels officers to intervene or attempt to intervene in instances of misconduct. Similarly, on June 8, Police Chief Anthony Holloway from St. Petersburg, Florida, announced the implementation of a policy for officers to intervene when they see a colleague engaged in misconduct. Legislative changes have also been proposed at the state and federal level. On June 25, the United States House of Representatives passed H.R. 7120 — The George Floyd Justice in Policing Act of 2020.15 While H.R. 7120 does not address a duty to intervene, it does address the criminal intent standard for prosecuting law enforcement and attempts to limit Qualified Immunity as a defense. Thus far, the United States Senate has declined to consider H.R. 7120. 

On Aug. 13, the Texas Legislative Black Caucus announced its intent to introduce the George Floyd Act in 2021 when the next legislative session begins. The Act includes numerous police reform proposals including banning chokeholds across the state of Texas, addressing Qualified Immunity, and requiring officers to intervene.16 More instances of these policies and legislative changes are likely to appear across the country in the future. 

In Tennessee, some police departments have yet to adopt policies that require officers to intervene. Others, like Chattanooga, Nashville and Memphis, have updated their policies to require intervention. On June 11, the Metro Nashville Police Department (MNPD) changed its policies on intervention to state, 

All members must recognize and act upon the Duty to Intervene in order to prevent or stop any member from conducting an act that violates law or policy (including, but not limited to, excessive and unlawful force, unlawful behavior, abuses of authority or major violations of department policy or procedure.17 

Previously, MNPD only required its officers to immediately report any incident of misconduct to their supervisor.18

Likewise, the Memphis Police Department (MPD) previously required an officer who observes or receives a complaint of misconduct to inform either their supervisor or internal affairs without delay.19 However, following the recent public outcry, MPD has also revised its policies to include a duty to take reasonable action if an officer observes another officer engaged in dangerous or criminal conduct.20 In the case of George Floyd or Eric Garner, intervention could mean life or death. Furthermore, when intervention occurs, trust is built between the community and the police department. This trust can be essential in successful policing. 

Moving Forward

As we await potential rulings from the Supreme Court or additional steps taken by legislatures at the state or federal level, officers will continue to shield themselves from civil liability under the Doctrine of Qualified Immunity. However, to prevent potential misconduct cases like those involving George Floyd, Eric Garner or Rodney King from causing more civil unrest, police departments throughout the state and country should provide training and incorporate new policies that require their officers to intervene in instances where they observe police misconduct and have the opportunity to prevent it. 

The Police Executive Research Forum (PERF) advocates for the inclusion of a duty to intervene in police departmental manuals and for training officers to notice warning signs that an officer may engage in excessive force.21 While this change will not happen overnight, adopting polices will show the community a good faith effort from their local police that they are moving in the right direction. 

As demonstrated, communities are already taking steps to address issues in policing from encouraging de-escalation tactics to abolishing no-knock warrants. In Tennessee, Gov. Bill Lee announced reforms that include changes in law enforcement curriculum and training, including increasing minimum training hours, updating curriculums to include training on proper use of force, positive community interactions, and changes in annual in-service training updates on de-escalation and the duty to intervene.22

Also, as a result of Breonna Taylor’s death in Louisville, Kentucky, Louisville’s City Council passed “Breonna’s Law” which outlaws no-knock warrants. Following the public outcry surrounding Ms. Taylor’s death, other jurisdictions, including Tennessee, are considering similar legislation. Tennessee state senator Raumesh Akbari has announced her intent to push for similar legislation during the upcoming legislative session.23

A frequent critique of the police oversight movement is that most officers are good and that a few “bad apples” are causing all the problems. Perhaps this is true. I want this to be true. However, it is incumbent upon those “good apples” to protect and serve the community by defending citizens from those few bad actors in uniform.

TODD PINCKLEY is a native of Huntsville, Alabama. He relocated to Nashville after graduating from the Cecil C. Humphreys School of Law at the University of Memphis. Since law school, he has held positions with multiple agencies in state and local government across Tennessee. He currently serves as the attorney-advisor for the Nashville Community Oversight Board, which investigates allegations of police misconduct. Any views expressed in this article are the author’s alone and do not necessarily reflect the views of the Metropolitan Government of Nashville and Davidson County or the Metro Nashville Community Oversight Board.


NOTES

1. This list is not meant to be exhaustive; it does not include the names of those subjected to police brutality prior to Mr. Eric Garner in 2014 like Mr. Rodney King who is discussed in this article. Furthermore, this list has continued to grow even in the months since this article was written.
2. Mill, John Stuart, Inaugural Address at St Andrew’s (1867).
3. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
4. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
5. Malley v. Briggs, 475 U.S. 335, 341 (1986).
6. Kisela v. Hughes, 138 S.Ct. 1148, 1162 (2017).
7. Baxter v. Bracey, 590 U.S. ____ (2020)
8. See Tennessee v. Garner, 471 U.S. 1 (1985).
9. Id.
10. Graham v. Connor, 490 U.S. 386 (1989).
11. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (citing see Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994)).
12. Tenn. Code Ann. §38-3-121.
13. https://www.justice.gov/crt/law-enforcement-misconduct#intervene.
14. Anderson v. Branen, 17 F.3d 552, 557 (2nd Cir. 1994) Krzeminski, 839 F.2d 9, 11 (2nd Cir.1988); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986); Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983); Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982), cert. denied, 459 U.S. 1171, 103 S. Ct. 816, 74 L.Ed2d 1014 (1983); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972).
15. George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Congress (2019).
16. Goldenstein, Taylor, Black, “Texas lawmakers unveil the George Floyd Act,” Houston Chronicle (August 13, 2020).
17. Metropolitan Nashville Police Department, “Roll Call Training: Policy Briefing, Duty to Intervene” (June 11, 2020).
18. Metropolitan Nashville Police Department, Department Manual, Deportment and Personal Appearance, §4.20.050(T) — Failure to Report Misconduct (2018).
19. Memphis Police Department, Memphis Police Department Policy and Procedures, Section 2: Internal Integrity §II (B)(1) – Reporting Police Misconduct (2016).
20. Memphis Police Department, Policy and Procedure Update, Amendment of DR127 Reporting Improper Conduct, June 9, 2020.
21. Police Executive Research Forum, PERF’s 30 Guiding Principles on Use of Force, pg. 41 (March 2016).
22. Alund, Natalie Neysa, “Gov. Lee law enforcement group recommends updated use of force policy, more police training,” Tennessean (Sept.10, 2020).
23. Roberts, Kelly, “Tennessee senator looking make legislative changes in wake of Breonna Taylor decision,” WMCActionNews5.com (Sept. 25, 2020).