Saucier, Donald v. Katz, Elliot, et al.

Saucier, Donald v. Katz, Elliot, et al.

By: Jennifer Ruiz, Medill News ServiceQuestions presented

(1) Whether in a case alleging the use of constitutionally excessive force, the test for qualified immunity and the reasonableness test under the 4th Amendment are identical, such that a finding of unreasonable force under the 4th Amendment necessarily precludes the officer from being entitled to qualified immunity. preclu(2) Whether the 9th Circuit erred in concluding, based on the facts known to it that the officer's use of force in arresting Katz, which consisted of carrying him from the crowd to a waiting van and pushing him inside, without injuring him or placing him in any pain, so clearly exceeded the amount of force permitted by the 4th Amendment as to warrant the denial of qualified immunity.

Brief

Animal rights activist and veterinarian Elliot M. Katz took a seat in the front row of the public seating area during a celebration marking the conversion of San Francisco's Presidio Army base to a national park. Vice President Al Gore was scheduled to speak, as were other important decision-makers, and Katz wanted to make sure he got a seat up front.

The date was Sept. 24, 1994.

It didn't take long for the 60-year-old president of the animal rights group In Defense of Animals, confined to a knee-high leg brace due to a broken foot, to attract the attention of military police assigned to the public ceremony.

Private Donald Saucier later recalled his supervisors told him no demonstrations would be allowed. Since the Presidio was technically still a military installation, public protest was prohibited. Saucier said Katz was pointed out to him ""as one of the potential activists to be watched.""

Saucier watched Katz and Katz watched Gore. A television camera was recording the event. As the vice president took the stage to begin his speech, Katz approached a fence separating the crowd from the speaker and began unfurling a cloth banner that read: ""Please Keep Animal Torture Out of Our National Parks."" Katz was reportedly protesting the use of the Letterman Hospital in the Presidio for animal experimentation.

But Gore and other officials attending the event never got a chance to read the banner. Before Katz could completely unfurl the banner, he was seized from behind by Saucier and Army Sgt. Steven Parker and relieved of the banner he tried to display.

Katz was hurried to a van, in which he was ""violently thrown inside,"" he said. Katz spent about 20 minutes in the vehicle before he was joined by another activist from IDA who was removed from the public area and placed in the van. The two activists were then taken to a military police station, briefly detained and released without charges.

Katz and IDA immediately filed a civil suit in U.S. District Court, alleging violations of the veterinarian's 1st Amendment right to free speech and asserting his 4th Amendment protection from arrest without probable cause and with excessive force.

Saucier, the key target of Katz's suit, and other military officers won summary judgment on the 1st Amendment claim after asserting a common defense for police officers known as qualified immunity. Under the qualified immunity defense, police officers who get sued for violating someone's constitutional rights cannot be held liable if the law is unclear or if they reasonably believe their conduct was lawful.

The qualified immunity defense also resulted in summary judgment for Saucier on Katz's false arrest claim. With the 1st Amendment claim and the false arrest claim dismissed, the suit was stripped down to Katz's 4th Amendment claim of excessive force against Saucier.

Finding disputed questions of fact on the 4th Amendment question, the district court held that the qualified immunity inquiry is the same as the inquiry on the merits in an excessive force claim. As a result, the court ruled summary judgment could not be granted and the excessive force issue should go to trial.

Saucier, backed by the U.S. Department of Justice, filed an interlocutory appeal of the denial of qualified immunity on the 4th Amendment question.

A unanimous 9th Circuit Court of Appeals panel in San Francisco affirmed, concluding that the qualified immunity inquiry is the same as the inquiry on the merits in an excessive force claim. The parity meant the matter could not be dismissed and must go before a jury, the appeals court said.

Katz did not appeal the summary judgment rulings against him on the 1st Amendment and false arrests issues, and the appeals panel did not address them.

""As the district court recognized, in an excessive force case, a material issue of fact as to whether an officer used excessive force precludes summary judgment on a qualified immunity defense,"" Judge David R. Thompson wrote. ""An officer cannot have an objectively reasonable belief that the force used was necessary (entitling the officer to qualified immunity) when no reasonable officer could have believed that the forced used was necessary (establishing a Fourth Amendment violation).""

Saucier argued that the amount of force he used was so minimal it was reasonable. But, Thompson wrote, the facts regarding the arrest were in dispute.

""According to Katz, without warning or speaking to him, Saucier and Parker approached him from behind, grabbed his banner, dragged him about fifty feet, and tossed him into the back of a van so violently that he narrowly avoided serious injury,"" he wrote. ""Taking these facts as true for the purpose of summary judgment, no reasonable officer could have believed that the alleged amount of force used to arrest Katz was necessary under the circumstances.""

What's more, Saucier's alleged behavior did not appear to pass the legal test for excessive force, the appeals court ruled. The test measures the severity of the crime, whether the suspect poses an immediate threat to the safety of officers or others and whether the suspect actively attempts to resist or flee.

""Unfurling a banner at a public event does not appear to be a particularly severe crime. Katz was sixty years old and wearing a leg brace. There is no indication that he was dangerous; no reasonable officer could have believed that the amount of force used was lawful,"" Thompson wrote.

The U.S. Justice Department sought U.S. Supreme Court review. They argue that overturning the lower courts' rulings and dismissing the 4th Amendment claim will allow public officials the necessary freedom to do their jobs.

""Government officials have to act,"" Justice Department lawyer R. Joseph Sher said. ""They must have some protection (from liability).""

""There has to be a filter, but we don't want a jury to be that filter,"" he said. ""There has got to be a way to say this is a case in which this (Saucier's actions) isn?t so bad that it has to be tried. Otherwise we have officers, by and large, who are concerned about their own liability and not concerned about protecting the rest of us.""

On Nov. 13, 2000, the U.S. Supreme Court accepted the case for review.

During oral arguments on March 30, 2001, the exchange benefitted from a visual aid unusual for the Court - a videotape. The video, from local news coverage in San Francisco, was of Katz's arrest at the Presidio on Sept. 24, 1994. It wasn't played during the oral arguments, but some of the justices had clearly viewed the tape in chambers.

""I just kept looking at it over and over and I came away thinking, 'Why are we here?'"" mused Justice Sandra Day O'Connor in noting that the arrest did not appear to involve the level of excessive force that would preclude an officer from invoking qualified immunity.

""I think we all have the same question,"" Justive Stephen Breyer said, inquiring of his fellow justices if they too saw what he saw.

At least two justices, John Paul Stevens and Antonin Scalia, said they had not viewed the tape. ""I didn't think that was why we are here,"" Scalia said.

The Court does not allow its oral arguments to be videotaped.

On June 18, 2001, the Court, by a vote of 9-0, sided with law enforcement, holding that officers should be allowed qualified immunity so long as the force they use resulted in reasonable, even if mistaken, beliefs about the situation before them.

The lead opinion, written by Justice Anthony Kennedy, created a two-step process, first deciding whether a constitutional violation exists, then whether an officer should be entitled to qualified immunity.

Under the facts, Kennedy concluded, because ""the force was not so excessive that [Katz] suffered hurt or injury,"" the officer was entitled to qualified immunity, and the suit should have been dismissed at an early stage in the proceedings.

""Pushes and shoves, like other police conduct, must be judged under the Fourth Amendment standard of reasonableness,"" Kennedy wrote.

In concurrence, Justice Ruth Bader Ginsburg wrote for herself, and Justices Stephen Breyer and John Paul Stevens , that the lead opinion travelled too complex a route to get to a fairly easy result.

""The two-part test today's decision imposes holds large potential to confuse,"" Ginsburg wrote. ""Endeavors to bring the Court's abstract instructions down to earth, I suspect, will bear out what lower courts have already observed; paradigmatically, the determination of police misconduct in excessive force cases and the availability of qualified immunity both hinge on the same question: Taking into account the particular circumstances confronting the defendant officer, could a reasonable officer, identically situated, have believed the force employed was lawful? ... Nothing more and nothing else need be answered in this case.""

Justice David Souter concurred, but indicated he would have remanded the case for a determination on whether qualified immunity should apply in the case.