NAPO FILES BRIEF TO PROTECT POLICE AGAINST FRIVOLOUS CIVIL CASES FOR MAKING ARRESTS

Washington, DC-On Monday January 8th, the National Association of Police Organizations, Inc. (NAPO), representing 4,000 law enforcement organizations with over 228,000 sworn officers, and its affiliate, the National Law Enforcement Officers' Rights Center, filed an amicus curiae brief with the U.S. Supreme Court in Saucier v. Katz, et al., no. 97-1977. The brief supports military police officer Donald Saucier and law enforcement officers everywhere who may be unfairly forced to stand trial whenever they are alleged to have used excessive force, even if the force appeared reasonable and lawful to the officers at the time. NAPO urged the Court to uphold qualified immunity for police officers, as a defense against being sued, whenever they reasonably believe that minimal or other lawful force is justified to arrest or restrain suspects or prevent public disturbances.

Summary of the Facts and Proceedings

Respondent Elliot Katz's claim of excessive force arose out of his arrest at the Presidio military base in San Francisco, during a September 1994 ceremony in connection with the conversion of the Presidio to a National Park. Although display of political banners on military bases is prohibited, Respondent Elliot Katz stood up during Vice President Gore's speech, walked to a barrier separating the officials from the audience, and then unfurled a large banner reading: "Please Keep Animal Torture Out of Our National Parks," protesting alleged animal experimentation at the Army hospital in the Presidio.

As Katz unfurled the banner, Officer Saucier and Sergeant Steven Parker, both military policemen, approached Katz quickly. These officers each took one of Respondent's arms and quickly removed him from the seating area. According to Katz (during discovery), they "started sort of picking me up and kind of walking me out, kind of like very hurriedly." Respondent claims that he was then "shoved" into a military police van located nearby. While Respondent claims that he nearly fell headlong all the way into the van and was almost injured, he was not injured because he caught himself in time. After a brief detention at a military police station, Respondent was released. Respondent's arrest was broadcast, and a videotape of the relevant portion was submitted to the court. 

Katz brought this action against Officer Saucier and other officials, alleging that the officers used unconstitutionally excessive force to arrest him. The trial court denied Saucier's motion for summary judgment on qualified immunity grounds. The Ninth Circuit agreed with the trial court in Katz v. United States, et al., 194 F.3d 962 (1999), and ruled that the reasonableness standard to determine the merits of Katz's excessive force claim was identical to the reasonableness test for the officer's qualified immunity defense, in blatant misinterpretation of a contrary Supreme Court decision (Anderson v. Creighton). If the Supreme Court does not reverse this lower court decision, then the qualified immunity defense against being sued will effectively become unavailable before trial to law enforcement officers in many, if not most, cases alleging excessive force-thwarting the immunity's purpose-and officers will be routinely forced to stand trial. Also, even after trial, the decision on qualified immunity will depend upon a jury's determination on liability (i.e. whether there was a violation of the Constitution). The Ninth Circuit also rejected Saucier's assertion that the "amount of force used in arresting Katz was so minimal that it was per se reasonable" to grant him qualified immunity, and the court ruled-incredibly, we believe-that, "… no reasonable officer could have believed that the amount of force used was lawful." 

Summary of NAPO's Main Points

This decision seriously circumvents and undermines the important public interests served by qualified immunity. Qualified immunity protects law enforcement officers and other public employees from the expense and vexation of protracted litigation, possible damages, and from the chilling effect of such upon the exercise of their responsibilities. The doctrine does this by screening out early in the litigation obviously frivolous cases and those cases where the officer reasonably believed that the force that he or she used was lawful under the circumstances and in light of current Fourth Amendment law. In diligently and reasonably pursuing their duties, officers should not have to fear harassing litigation or potential monetary damages, nor should they be unfairly second-guessed months or years later by a judge or jury that can always imagine some alternative means which might have been utilized instead. 

NAPO Executive Director Robert T. Scully stated, "Officers who use any physical force to arrest or restrain a suspect, to prevent a public disturbance, or to defend themselves or others,-no matter how minimal the force used or the lack of any injury-will be at risk if this appellate decision is not reversed. The fear of personal liability can seriously erode an officer's confidence and willingness to act decisively. In addition, officers routinely fear for their continued careers, their physical and emotional health and that of their families, and even sometimes their financial solvency (if not fully indemnified and if the possibility of punitive damages exists) when named as defendants in lawsuits alleging constitutional violations. It is no wonder that police departments are having difficulty in keeping and recruiting officers, with poor morale being the biggest obstacle to retaining current officers and a major factor in recruiting new ones."

Scully continued, "We should not underestimate the impact of this case on law enforcement. Were the lower court's ruling applied nationally, the number of federal civil rights actions against officers going to trial will probably increase, by unfairly taking away from officers a key pretrial defense and subjecting them to lengthy discovery and trials and potential punitive damages. Basic legal research already discloses an ever-increasing number of section 1983 excessive-force claims against officers-hundreds of appellate decisions alone in the last few years. It is no secret that a 'cottage industry' of attorneys has developed to sue police officers. This 'industry's' primary purpose is to find clients with a grievance against the police because of alleged mistreatment and then to bring lawsuits alleging constitutional violations, for the purpose of winning substantial sums. While that phenomenon is obviously the American way, and while a few cases may merit a finding of liability and damages, it is no secret that the goal behind many of these cases is to obtain a significant pre-trial settlement, which state or local governments are often willing to make for financial hardship or political reasons. Affirming the lower court's decision would provide even more incentive to file lawsuits against officers and their agencies. 

Turning to the facts of this case, NAPO's brief concluded that qualified immunity would entitle the Petitioner officer to summary judgment, in light of clearly established principles governing the use of force, because military police officers could have reasonably believed that his specific actions in arresting Respondent Katz, in quickly removing him from the ceremony, and in placing him in a van out of sight, were lawful under these circumstances-the standard set by the Supreme Court. Failing to quickly remove the Respondent could have disrupted the Presidio ceremony and encouraged others to register protests, as well as possibly increasing a security risk to the Vice President and other officials. In summary, the force used on Katz was of the type that police officers could reasonably expect to use to remove an individual quickly from a crowd to prevent a public disturbance.

In addition, four federal circuit courts of appeal apply the principle of de minimis or minimal use of force and grant qualified immunity whenever the force used by a law enforcement officer was minimal, and the injuries were minor or non-existent. Because the force used in removing the Respondent and in placing him in the van was nominal and minimal, as indicated by a lack of any injury, the Petitioner should have been granted summary judgment under one of three standards applied by other circuit courts (as discussed on pages 24-30 of the brief). 

Executive Director Scully concluded, "We welcome the opportunity for the Supreme Court to clarify and reaffirm an important doctrine serving the public interest. We hope that the U.S. Supreme Court will agree with our position when it renders a decision."

For a copy of the brief or for interviews, please call Stephen McSpadden at 202-842-4420.


The National Association of Police Organizations is a national non-profit organization and coalition of 4,000 police associations and unions, representing law enforcement officers throughout the United States, which serves to advance, together with the Officers' Rights Center, the interests and rights of officers through advocacy, legislation, and education.