Date: Mon, 8 Oct 2007 04:24

From: Chaim Saiman

Subject: Police liability - The American story

To my friends over the border and across the pond:

I have not read the SCC case under discussion, but just wanted to give you an American take on police liability. Most of these cases are brought under what is called at "section 1983" which alleges a constitutional violation against a police officer (who is most often a state, rather than federal, employee) and opens the way to liability despite what state law might say. However, over the past 30 years the USSC has developed the doctrine of "qualified immunity" whose unabashed purpose is to make tort actions against police officers more difficult. A plaintiff must prove not only that the officer's actions were unconstitutional, but that the unconstitutionality was "clearly established". For this reason, unless plaintiff can find a prior precedent that spells out pretty much black on white that the particular conduct at issue violated the plaintiff's constitutional rights, the officer escapes liability. See Saucier v. Katz. 523 US at 205.

This hurdle is particularly difficult to overcome in cases where the abstract legal principle is obviously clearly established, but where plaintiff has a hard time proving that the application of the principle to the specific case facts can be deemed "clearly established". For example, in an excessive force case, the abstract principle (officers cannot use "excessive force") is obviously clearly established, but unless plaintiff can point to another case (and some circuits hold that it must be within the same circuit) showing that this exact method of excessive force has been previously deemed unconstitutional by positive case law, a court may hold that the violation is not clearly established. This doctrinal structure makes it rather difficult for plaintiffs to succeed in such cases. Nevertheless at any given moment the federal docket is littered with cases pleading "1983" violations.

Courts have been pretty strict is saying that typically only prior case law can "clearly establish" unconstitutionality. Thus departmental regulations, things covered in training manuals and videos, etc. will not serve to "clearly establish" something as wrong.

If I can plug one of my own articles on this topic, it’s Chaim Saiman, “Interpreting Immunity”, 7 U. Penn J. of Constitutional Law 1155 (2005). There I argue that the doctrine systematically favors defendants because the common law's method of tort development is not designed to distinguish between conduct that is just plain "unconstitutional" and conduct that is so egregious such that its unconstitutionality is "clearly established".

Chaim Saiman
Assistant Professor
Villanova Law School
610.519.3296
http://ssrn.com/author=549545

>>> Neil Foster 10/07 7:55 PM >>>

Dear Michael, John, etc

I read through the Hill v Hamilton-Wentworth decision over the weekend, at the same time as I have been working through Allan Beever's new book Rediscovering the Law of Negligence (Hart, 2007) which our library just got in. (For those who haven't read it yet, it is fascinating, a really important work which seems to me to break some new ground and also to be very readable! I don't know if Allan's on this list so I'm not saying that to be polite!)

I was wondering whether anyone else has read Allan's book and would like to comment on how his theory would suggest the issue of police liability to suspects for negligent investigation should be resolved. (I can't see that it is dealt with in the book, though I may be wrong - Sullivan v Moody doesn't even seem to rate a mention, oddly.) As I read it the core of Allan's theory (based on a corrective justice view of negligence) is that there should be a duty of care based on reasonable foreseeability, focusing on the relationship between the claimant and the defendant, and the issue of whether some right the claimant has, has been interfered with by the defendant, not encumbered by extraneous policy considerations. (See one summary at p 133 of the book; also p 512.)

In the police duty case, one could argue that the interest that a potential suspect has (i.e. you and I and everybody in society) is not to have their personal bodily integrity, liberty (and presumably reputation) interfered with unreasonably by the State in conducting investigation of crime. The State in conducting its investigation is actually doing something positive, not "failing to act", so the issue of nonfeasance is not present. If society thinks that such investigations should not be hampered by having to worry about being "reasonable", then it can put in statutory immunity. But the courts in developing the law of torts should not do so.

So I am saying that Allan's approach would support the decision reached by the majority of the SCC in this case, though it would get there by a different route.

(PS I just remembered that at the moment we have to manually add "ODG" to the subject line of messages.)

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