Notes on the Damond complaint

I spoke with Minneapolis attorney Bob Bennett about the complaint he filed on Tuesday in connection with the death of Justine Damond at the hands of Minneapolis police officer Mohamed Noor. Bob represents the plaintiff trustee for the next of kin in the case. I’ve known Bob as a dogged and straightforward attorney from the first time I met him at the rosy dawn of our legal careers. Since then Bob has become the go-to Minnesota plaintiff’s lawyer in police misconduct cases.

Bob told me yesterday that the use of deadly force in this case is “the worst [he’s] seen” since he took his first such a case in 1980. He paused to do the arithmetic for me: “That’s 38 years.”

In this post I want to note the basic legal issues that Bob’s complaint addresses. (I have posted the complaint here and below.) My intent here is to deepen the understanding of interested readers in what it’s (almost) all about. These notes are a cursory guide with the proviso that, although I have professional education and experience in this area of the law, I am by no means an expert in it. When I make various pronouncements below, please understand that they are my opinion based on my limited expertise and understanding. I apologize in advance for any errors or inaccuracies.

Section 1983 lawsuits are like personal injury lawsuits under state law, but they have their own wrinkles. State law governs who can bring 1983 claims and how the proceeds are distributed when the lawsuit is concluded, but federal law otherwise generally governs their disposition (per 42 U.S.C. § 1988). Minnesota law affords officers certain limitations of liability and defenses that do not apply here because federal law controls the case.

One such wrinkle is the inapplicability of the doctrine of respondeat superior that applies in personal injury or wrongful death cases. An officer’s employer is not as a rule responsible for his conduct under section 1983. Plaintiffs’ attorneys therefore look for additional defendants to maximize their chances of a favorable settlement and of recovering whatever damages a jury may award. In this case Bob has also asserted claims against Noor’s partner, Officer Matthew Harrity, against the past and present Minneapolis police chiefs and against the city of Minneapolis itself under an exception to the rule precluding employer liability.

Section 1983: The statute under which claims for the violation of constitutional rights may be asserted against state and local government officers is 42 U.S.C. § 1983. Claims under the statute raise a variety of legal issues. Here is an overview.

The complaint asserts a claim against Officer Noor for using (objectively) unreasonable force against Justine in violation of her constitutional rights. If the jury determines that Noor’s use of force was unreasonable, he will be liable for the full panoply of personal injury damages deriving from Justine’s death. Note the complaint’s background on, and description of, Justine in her pajamas — that Officer Harrity responded with a “Code 4” message indicating that all was well when he and Noor completed their trip down the alley behind Justine’s house. No fact remotely suggests the use of deadly force was objectively reasonable.

The complaint fashions a conspiracy claim against Noor and Harrity for failing to activate their body cameras in violation of departmental policy. This is not a claim that fits neatly under section 1983.

The complaint asserts claims against then Chief of Police Janee Harteau and then Deputy Chief (now Chief) of Police Medaria Arradondo for failing to overcome the coordinated “blue wall of silence” and duplicity of officers that manifested itself in the unsuccessful prosecution of Officer Efrem Hamilton by the Hennepin County Attorney. The complaint alleges facts demonstrating the manifestation and official toleration of the “blue wall” in the Hamilton case. Again, this is not a claim that fits neatly under section 1983.

Qualified immunity: Officers against whom section 1983 claims are afforded a legal defense of qualified immunity. When it applies, the legal defense of qualified immunity protects officers from the lawsuit as well as from liability. The defense applies to claims for the violation of a right that was not “clearly established” at the time. In other words, if an officer in the defendant’s position should not have known that his conduct violated plaintiff’s constitutional rights under the circumstances, the lawsuit is to be dismissed. Here is a basic guide to the defense.

I don’t think the defense of qualified immunity can successfully be asserted on the basic claim for use of deadly force against Noor. It may be asserted on the other claims and I am not clear on how it would be resolved. The defense of qualified immunity does not apply to the claims against municipalities, in this case the city of Minneapolis.

Monell and municipal liability: As stated above, municipalities cannot be held vicariously liable for the constitutional wrongs of their officers. However, if the wrong is committed as a result of a municipal policy, section 1983 liability can attach under the Monell case. The City of Canton case expands on Monell to allow for constitutional claims committed by reason of the municipality’s “failure to train” the officer or employee.

Here plaintiff asserts claims against the city for “three prongs” of municipal liability following these cases: failure to train, alteration of selection procedures and failure to enforce appropriate policies. The complaint alleges facts at length to make cognizable claims against the city.

I am reposting the complaint below for the convenience of readers who may want to take a look at the claims in this context.

Damon d Death Family Lawsuit by Scott Johnson on Scribd