On July 28, 2023, Los Angeles police shot and killed 30-year-old Benjamin Chin in the Diamond Bar neighborhood, according to news reports. Chin had stabbed his mother, left their home, and was trolling the block with a ghost gun style assault rifle. The police appeared on the scene, tracked Chin, and observed Chin approach a Tesla on Diamond Bard Boulevard near the officer. The police ordered Chin to drop his weapon. Chin refused. The police shot and killed him on the scene. These events raise the question of whether Chin’s estate can sue for excessive force.
Can Chin’s estate sue the police for excessive force under 42 USC 1983? To sue under 1983, there has to be a constitutional violation. Our federal courts long ago determined that excessive force is a Fourth Amendment violation—the force is akin to a seizure. The Fourth Amendment prohibits illegal search and seizures of the citizen. Therefore, you can sue a police officer for excessive force because there is a Fourth Amendment violation.
A court created doctrine called qualified immunity often shields law enforcement officers from actions they take while in the line of duty. If the court finds qualified immunity for the police officer, they cannot be held legally responsible for the underlying events. In some scenarios, a court may allow the question of qualified immunity to go to the jury.
Qualified immunity is an entire area of civil rights law that could be discussed for days. Many pundits think qualified immunity should be outlawed, and the question of whether the force was excessive should go to a jury to decide.
The determination of whether qualified immunity should apply in a civil rights case generally depends on these two factors:
- Whether the plaintiff has established a constitutional violation
- Whether the right at issue was clearly established at the time of the official’s conduct
The clearly established constitutional right in the realm of police brutality is not really an issue because, as stated above, courts stated long ago excessive force is a Fourth Amendment violation. The issue in this type of case is typically whether the right was clearly established. This means determining whether the circuit court in your jurisdiction can rely on a previous case on point. Is there a case in your jurisdiction that involved similar conduct that the court can rely on as precedent? This part can be tricky.
The seminal case in the United States is Graham v. Connor, 490 U.S. 386 (1989). In the third circuit, the main case is Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997), which clearly established the rule in the third circuit, as follows:
Under § 1983, the use of excessive force to effect an arrest violates a suspect’s Fourth Amendment rights. Graham v. Connor, 490 U.S. 386, 395–96 (1989). Excessive force must be examined objectively since officers must use force that is objectively reasonable from the perspective of a reasonable officer. Id. at 396–97; Kopec v. Tate, 361 F.3d at 776–77. The totality of the circumstances inquiry set forth in Graham identified specific factors for courts to consider, including 1) “the severity of the crime,” 2) the “immediate threat” posed by the suspect to officers or others, and 3) whether the suspect was “actively resisting arrest” or “evad[ing] arrest by flight.” Graham, 490 U.S. at 396. Our Circuit has expanded this list of factors to include 1) whether the suspect is “violent or dangerous,” 2) the “duration” of the force, 3) whether the force was used to make an arrest, 4) the “possibility” that the suspect is armed, and 5) the number of people with whom the police must contend. Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997). Things not to be considered include the officer’s intentions and motivations, be they good or bad. Graham, 490 U.S. at 397. Critically, the objective analysis cannot be skewed by 20/20 hindsight since courts must appreciate that officers are forced to make split-second decisions. Id. at 396–97. Patrick v. Moorman, 536 F. App’x 255, 258–59 (3d Cir. 2013).
According to the above caselaw, the court must consider the following factors when determining whether qualified immunity should apply:
- The seriousness of the crime
- The immediate threat to anyone on the scene
- Active resistance or evading by flight
- Whether the suspect is violent
- The duration of force
- Whether the suspect is armed
- Whether the force was used when making an arrest.
This analysis is based on a totality of the circumstances, meaning all of the factors need not be present, but when considering all of the factors, a reasonably objective law enforcement officer would say they were justified in using the force.
In the Chin case, the analysis is very straightforward when considering the above factors:
- Stabbing your mom is a serious crime.
- Carrying an assault rifle on a major thoroughfare in Los Angeles is an immediate threat to a busy community.
- Chin refused to stop and be arrested.
- Stabbing your mom and carrying an assault rifle makes you violent.
- The force was quick.
- Chin was armed.
- The force was not used to make an arrest.
Clearly, the police were allowed to use deadly force to keep themselves and other community members safe. In this case, certainly, the officer had qualified immunity, and Chin’s estate should not sue the police for excessive force under 42 USC 1983.
Reexamining Qualified Immunity
In 2020, the United States Supreme Court declined to hear a case where they had the opportunity to strike down or redefine qualified immunity. Nina Totenberg from NPR wrote on whether the Supreme Court should have taken the case. According to Totenberg, Justice Sotomayor wants the Court to review the doctrine so law enforcement does not have an absolute shield when using force. Organizations nationwide have filed amicus briefs in the Supreme Court on the subject, including the Cato Institute, Institute for Justice, American Civil Liberties Union, and the NAACP.
While the Chin matter is somewhat straightforward, many cases are very muddied. Courts have the power to dismiss cases based on qualified immunity when the question of the force does not meet the example from Graham. The question of whether qualified immunity should be outlawed so the shield is removed from police in jurisdictions in the United States, where all of the courts are very much on the side of law enforcement, is an open question and may not get addressed in the near future.