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EXCESSIVE FORCE AND FAILURE TO INTERVENE: PART II

Eleventh Circuit Explains Ratification of Excessive Force

July 2015

by Brian S. Batterton, Attorney



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©2015 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On June 25, 2015, the Eleventh Circuit Court of Appeals decided Salvato v. Miley et al. [i], which provides an excellent explanation of the “ratification” as it pertains to potential liability for police and sheriff department’s that exonerate officers after a use of force that is later deemed excessive.  This is Part II of the series; Part I discussed the alleged excessive force by the deputy and implications of failure to intervene.  In summary, Deputy Miley and Deputy Brown responded to a call of a man yelling and cussing at passing cars.  They arrived, got into a physical fight with the man, Salvato, and as he was backing away from the deputies, Deputy Miley shot him once without warning.  The Eleventh Circuit Court of Appeals, as discussed in Part I of this series, held that the shooting was in violation of clearly established constitutional law, and therefore, excessive force under the Fourth Amendment.  After the shooting, the department did not do an internal investigation.  Rather, they waited for the state and the state’s attorney’s office to review the case to determine if criminal violations occurred.  The review held that no violation of state criminal law occurred and the sheriff conducted no further investigation.  The facts relevant to the issue of ratification by the sheriff in Salvato, taken directly from the case, are as follows:

The Response of the Sheriff's Office

A Marion County Sheriff's Office Operations Directive details the required response to a police shooting. The directive requires a supervisor to submit a "Green Team Report" of "recommendations and/or action taken." That report is an internal investigation by the Sheriff's Office to determine whether a deputy has violated any policies or directives. The directive requires that, when a police shooting results in a death, the State Attorney's Office and the Florida Department of Law Enforcement must be notified, and one of these offices or the Sheriff's Office conducts an investigation.

After the Florida Department conducted an investigation, the State Attorney presented the case to a grand jury to decide whether to file criminal charges. The grand jury did not indict Miley. The investigation by the Florida Department did not provide any opinion about whether Miley violated Salvato's constitutional rights or the policies and directives of the Sheriff's Office. The investigation by the Department was limited to a determination about criminality.

The sheriff testified that he decided not to order an internal affairs investigation. He concluded that the investigation by the Florida Department and the grand jury report were "sufficient to cover all of our policies." The sheriff created a "task force committee" of "senior leaders" to review the reports from the grand jury and the Department, but that committee was "only set up to look at the external reports." The sheriff took no disciplinary action against Miley, but he did reassign her to a corrections officer post. [ii]

Salvato’s estate later sued the deputies in their individual capacities (suits against them personally) for excessive force in violation of the Fourth Amendment and the Sheriff of Marion County in his official capacity (suit against the County) for ratifying the excessive force by failing to investigate the incident.  The district court denied qualified immunity for the deputies and denied summary judgment for the sheriff.  The case went to trial and the jury found the deputies committed excessive force and the sheriff failed to investigate the incident which ratified the excessive force, thereby causing liability on the county.  Deputy Miley and the sheriff appealed to the Eleventh Circuit Court of Appeals.  This article examines the “ratification” as it pertains to the sheriff’s liability.

Thus, the issue before the court on appeal was whether the district court erred when it failed to grant sheriff’s motion for summary judgment as it pertained to the excessive force alleged by Salvato.

Salvato alleged that the sheriff’s one instance of failing to investigate this incident ratified the constitutional violation.  The sheriff argued that one instance of failing to investigate an excessive force incident is not sufficient to ratify a constitutional violation.

At the outset, regarding ratification, the court stated:

"[I]f the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926 (1988)… The sheriff must "cause[]," 42 U.S.C. § 1983, the constitutional violation; that is, he must "officially sanction[] or order[]" the action. Praprotnik, 485 U.S. at 123, 108 S. Ct. at 924 (internal quotation marks and citation omitted). [iii]

In other words, as the court explained:

[A] local government may be held liable for a constitutional tort when policymakers have had the opportunity to review subordinates' decisions before they become final." Id. (emphasis added). [iv]

In Salvato’s case, since the sheriff did not approve of Deputy Miley’s shooting of Salvato before the shooting, the sheriff cannot be found liable under the ratification theory. 

Additionally, the court noted that a sheriff or local government cannot be held liable on the theory of respondeat superior. In order for a sheriff or local government to be liable for the constitutional violations of their employees, the plaintiff must show that a policy, custom, or practice of the government agency caused the violation.  Here, however, the court noted that Salvato did not allege any facts or evidence to show a policy, custom or practice of the sheriff caused the violation. 

Rather, Salvato alleged that this one act of failing to investigate his shooting forms the basis of liability.  To this, the court stated:

[M]unicipal liability is limited to action for which the municipality is actually responsible," id. at 479, 106 S. Ct. at 1298, and a single failure to investigate an incident cannot have caused that incident. [v]

As such, the failure to investigate this single incident does not give rise to custom of failing to investigate use of force incidents.  The court did note that:

[A] "persistent failure to take disciplinary action against officers can give rise to the inference that a municipality has ratified conduct, thereby establishing a[n] [unconstitutional] 'custom'. . . that can subject the government to liability." Id. at 1174 n.12 (alterations in original) (quoting Fundiller, 777 F.2d at 1443). But where the plaintiffs rely on a "single incident," id., the official must have had an "opportunity to review" the subordinate's decision "before [it] become[s] final," id. at 1174. [vi]

Thus, because the sheriff did not approve of the shooting before it occurred, and because there was no policy, custom or practice of the sheriff that caused the violation, the court reversed the decision of the district court and held that the sheriff was entitled to summary judgment on the issue of liability for excessive force.

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Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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CITATIONS:

[i] No. 14-12840 (11th Cir. Decided June 5, 2015 Unpublished)

[ii] Id. at 4-7

[iii] Id. at 17

[iv] Id. at 19

[v] Id. at 20

[vi] Id. at 19

 

 
       
 


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