• Fourteenth Amendment Due Process and the Use of Deadly Force
• Fourteenth Amendment and “Shocking the Conscience"
• Fourteenth Amendment vs. Fourth Amendment Excessive Force Lawsuits

Proving a Fourteenth Amendment due process violation in an excessive use of force case requires proof that the officers’ actions “shocked the conscience.”  While “shocking the conscience” is a necessary element of an alleged Fourteenth Amendment violation, it is not an element of a Fourth Amendment excessive force violation.  However, a decedent’s Fourth Amendment rights, where it is alleged that excessive force was used against a decedent, are personal rights which may not be vicariously asserted by the decedent’s relatives. 

Mesa (Arizona) police got a 911 call from a woman who reported that her ex-boyfriend, Sergio Ochoa, had just left her home after they’d had a fight.  She further reported that a handgun had been involved and that Ochoa was strung out on drugs; methamphetamine and possibly heroin.  She also indicated that he had outstanding arrest warrants.  Eight minutes later, the Mesa Police got another 911 call from a resident who lived nearby the earlier caller, complaining that a man had entered his home without permission.  This caller indicated that the man was armed with two knives and was complaining that his girlfriend had just stabbed him.  The intruder left this residence driving a car that matched the description of the car obtained from the ex-girlfriend in the earlier call.  A police helicopter was dispatched to the area and soon spotted the car.  Police units, with the aid of the helicopter, followed the car as it drove erratically from Mesa to the nearby town of Gilbert, inexplicably stopping at green lights and driving on the wrong side of the road.  The driver—later determined to be Ochoa—abandoned the car in a residential neighborhood in Gilbert, and fled into a residence.  As Mesa and Gilbert officers surrounded the house, a resident frantically called to the officers from an upstairs window, complaining that the man they were looking for was in his home and did not belong there.  The officers helped the resident evacuate two children through an upstairs window.  Meanwhile, other officers could see Ochoa through the downstairs windows, arguing with others inside the house, and looking upset while possibly holding a knife. A drug-recognition expert officer later testified that Ochoa appeared to be under the influence of meth.  Fearful that a hostage situation might be developing, seven officers forced entry into the house through the front door, kicking it open. As they did so, Ochoa fled out the back where he was confronted by another officer.  Surrounded by all these officers (in what was described as an “L” shaped line of officers), Ortega was ordered to drop two knives he was observed to be carrying.  Ochoa—who appeared to be angry and ready to fight—ignored the officers’ commands.  After a beanbag round was fired at him apparently with no effect, and a police dog was released, Ochoa took a large step sideways away from the officers in an apparent attempt to escape, at which time the officers fired in unison a barrage of some 30 rounds.  Ochoa fell to the ground on his stomach with at least one of his hands tucked out of view near his waistline. When he failed to respond to commands to pull his hands out to where the officers could see them, the dog was commanded to drag Ochoa so that his hands were visible.  Not surprisingly, Ochoa died at the scene.  A postmortem toxicology report showed that he did indeed have meth in his system.  Bodycam video showed that the time span between when the officers first made entry into the house until the shooting was a total of 16 seconds.  Ochoa’s children (through their mother) and his mother (collectively, the plaintiffs) all filed a wrongful lawsuit in state court against the towns of Gilbert and Mesa, two Gilbert police officers, and seven Mesa police officers.  In their lawsuit, the plaintiffs alleged that the civil defendants violated the Fourteenth Amendment (due process clause) by wrongfully depriving the plaintiffs of Ochoa’s “companionship and familial association.” It was also alleged that the officers violated Arizona state law (i.e., A.R.S. § 12-611) by wrongfully killing Ochoa.  (It was noted by the Court that the plaintiffs did not separately assert any Fourth Amendment excessive force claims, which becomes significant. See “Note,” below.)  The case was removed from state court to federal court (no doubt on the civil defendants’ motion) where the defendants moved for summary judgement (i.e., dismissal of the lawsuit), claiming “qualified immunity,” arguing that there was no violation of a clearly established Fourteenth Amendment right.  The federal district court granted the defendants’ motion, thus dismissing the federal aspect of the lawsuit.  The remaining state court issue (the alleged Arizona state law violation) was returned to the state court for adjudication.  The plaintiffs appealed.

The Ninth Circuit Court of Appeal affirmed.  The Fourteenth Amendment states in part: “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”  As alleged in this lawsuit, it was noted that “(A) parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child. . . . (Also), a ‘child’s interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest.’”  (Curnow ex rel. Curnow v. Ridgecrest Police (9th Cir. 1991) 952 F.2nd 321, 325; Smith v. City of Fontana (9th Cir. 1987) 818 F.2nd 1411, 1419.)  But to state a claim under this theory, it must be proved that in killing the deceased parent or child, the officers’ actions “shocked the conscience.”  (Italics added; Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.)  The courts use either one of two separate tests to show that law enforcement’s actions in shooting and killing a person “shock the conscience;” i.e., the “deliberate-indifference” test and the “purpose-to-harm” test.  Which test applies turns on whether the officers had time to deliberate prior to acting.  The “deliberate-indifference” test applies if the situation at issue “evolve[d] in a time frame that permits the officer to deliberate before acting.”  Deliberation is not possible, however, if the officers “encounter[ed] fast paced circumstances presenting competing public safety obligations.” (Porter v. Osborn, supra, at pp. 1137-1139.) The “purpose-to-harm” test applies when both (a) the situation “escalate[d] so quickly that the officer [had to] make a snap judgment.” and, (b) as its label suggests, the officers acted with a purpose to harm the decedent “for reasons unrelated to legitimate law enforcement objectives.”  (Porter v. Osborn, supra, at pp. 1137.)  As noted by the Court, “(i)llegitimate objectives include when the officer had any ulterior motives for using force against the suspect, such as to bully the suspect or get even with him, or when an officer uses force against a clearly harmless or subdued suspect.”  (Internal quotes omitted; Ibid.; Gonzalez v. City of Anaheim (9th Cir. 2014) 747 F.3rd 789, 798; Wilkinson v. Torres (9th Cir. 2010) 610 F.3rd 546, 554.)  In this case, the Court agreed with the trial court in determining that the “purpose-to-harm” test applied (although the Court does not state why, other than to state that “the record supports the district court’s decision . . .” on this issue). Using this test, the Court found that the officers did not have time to deliberate before shooting Ochoa.  The entire incident, between chasing Ochoa out of the house and the fatal shooting, took place within 16 seconds.  During this time, an “angry and agitated” Ochoa refused to cooperate, ignoring commands to drop the knives he held or to otherwise submit to arrest.  This lack of cooperation forced the officers to react instantly, and without deliberation.  Per the Court; “at least four (legitimate) law enforcement objectives [were] apparent: officer safety, protection of the occupants still inside the home, apprehension of an apparently dangerous suspect, and protection of the public at large in the event [Ochoa] escaped from the backyard.”  Further, there was no viable evidence of the officers’ “illegitimate purpose to harm.”  Shooting Ochoa up to 30 times, and the use of the police dog, were both necessitated by Ochoa’s continued resistance and refusal to show his hands. As such, the Court found that the officers’ actions did not “shock the conscience.”  As such, no Fourteenth Amendment violation occurred.  Dismissal of the due process aspect of the case was therefore affirmed, while the state law issue was returned to the Arizona state court for adjudication.

So why didn’t the plaintiffs allege a Fourth Amendment excessive force violation instead?  This issue was discussed in the decision at pages 1056-1057 of the Court’s decision where it was acknowledged that suing via the Fourth Amendment might have some “surface appeal.”  Under the Fourth Amendment, a plaintiff need only prove that the officer’s actions were “objectively unreasonable.” (Graham v. Connor (1989) 490 U.S. 386, 397.)  “Shocking the conscience” is not an element of a Fourth Amendment excessive force violation.  The problem is that a decedent’s relatives cannot legally assert his Fourth Amendment rights for him.  Per the Court: “Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.” (Plumhoff v. Rickard (2014) 572 U.S. 765, 778.)  Thus when it is the decedent’s relatives who are suing—necessarily for the loss of “companionship and familial association” since they themselves were not personally injured—and not the decedent’s estate, the plaintiffs are limited to using the Fourteenth Amendment as its legal vehicle by which to hold the officers responsible.  The problem for the plaintiffs, of course, is that a lawsuit via the Fourteenth Amendment imposes upon them the added “shocking the conscience” element that the Fourth Amendment does not.  The Court also noted that the plaintiffs cannot sidestep the need to prove the “shocking the conscience” element by asserting Ochoa's Fourth Amendment rights through a Fourteenth Amendment claim. (Porter v. Osborn, supra.)  “Shocking the conscience,” by the way has (coincidentally) been defined elsewhere as actions that are those taken with (1) “deliberate indifference” or (2) a “purpose to harm . . . unrelated to legitimate law enforcement objectives.”  (See A.D. v. State of California Highway Patrol (9th Cir. 2013) 712 F.3rd 446, 453.)  So the legal route Ochoa’s relatives took, alleging a Fourteenth Amendment violation, was really the only way they had available to them.  Either way, however, it’s hard to imagine a court or a jury finding that the officers’ actions in shooting Ochoa under these circumstances could have been “unreasonable” (the Fourth Amendment standard), let alone “shocking” (the Fourteenth Amendment standard). Having shown his propensity towards violence, flipped out on drugs, and armed with several knives which he refused to relinquish as he continued to attempt to escape, it’s hard to criticize the officers for using deadly force to stop him, even if it took 30 rounds and a police dog to do it.

• First Amendment Right to Freedom of Expression
• Retaliatory Arrests

The First Amendment forbids government officials from retaliating against individuals for “speaking out” (i.e., exercising their First Amendment freedom of speech rights), whether or not the persons so speaking are critical of the government.  While the existence of probable cause to arrest precludes, as a general rule, a civil suit based upon an arrest in retaliation for speaking out, an exception to this rule applies where the plaintiff’s violation is one not normally and/or not uniformly enforced.

Plaintiffs Brian Ballentine, Catalino Dazo, and Kelly Patterson, were all members of a local activist group called the “Sunset Activist Collective” which, in turn, was associated with an organization called “CopBlock.”  As the name implies, they tended to be critical of the police.  The Plaintiffs in this case liked to demonstrate their dissatisfaction with the police through the use of chalk, writing anti-police messages on the sidewalks of Las Vegas.  In Nevada, the use of chalk on a city’s sidewalks is illegal. (Nev. Rev. Stat. § 206.330; “plac(ing) graffiti on or otherwise defac(ing) the public or private property, real or personal, of another, without the permission of the owner.”)  On June 8, 2013, Plaintiffs were chalking the sidewalk in front of the Las Vegas Metro Police Department’s headquarters, writing messages (spanning some 320 square feet) that were critical of the police.

Told by a Metro Police supervisor that their chalking activities were illegal—the officer suggesting instead that they use signs like everyone else—they were warned that they would be cited if they didn’t clean up their artwork.  Plaintiffs refused to clean it up their artwork.  So, upon confirming with a state court judge, a deputy district attorney, and an internal affairs detective that sidewalk chalking is a crime under Nevada’s graffiti statute, they were cited.  The cost to the City of cleaning up the Plaintiffs’ artwork was not indicated.  A follow up investigation by Detective Tucker (the listed civil defendant in the eventual lawsuit), researching the Plaintiffs’ social media accounts and tracking their activities, revealed to the detective the Plaintiffs’ association with the above anti-police organizations, as well as the nature of the Plaintiffs’ repeated chalking episodes.

On July 13, 2013 (over a month after the above incident), Plaintiffs Ballentine and Patterson again chalked messages critical of the Metro Police Department on the sidewalks outside of Metro’s headquarters.  This message (spanning 240 square feet) cost the City $300 to clean up.  Five days later (July 18), Plaintiffs appeared in court on the citations issued to them on July 8.  The citations “were not prosecuted” (i.e., dismissed?).  Showing their gratitude (or lack thereof), Plaintiffs left the courtroom and immediately proceeded to chalk up the sidewalks in front of the courthouse.  This time they illustrated their displeasure with the Metro Police Department with such profanities as “F__k Pigs,” and “F__k the Cops.”  This chalking spanned some 1,000 square feet and cost the City approximately $1,250 to clean up.  Detective Tucker witnessed this latest chalking episode.  Confronting the Plaintiffs, the detective’s request to clean up the chalk was ignored.  It was also noted by the Court that other individuals, including children, were not stopped from also chalking the sidewalks that day (a fact that later becomes significant).

A week later (July 26), Detective Trucker applied for arrest warrants for Plaintiffs, alleging violations of Nevada’s chalking law on July 13 (at the Metro Police Department ) and 18 (at the courthouse).  A criminal complaint—referring to the graffiti as “derogatory and profane”—was filed against the Plaintiffs on August 9th, alleging a conspiracy to commit the crime of “placing graffiti,” or otherwise “defacing property.”  Plaintiffs Ballentine and Patterson were arrested at a subsequent protest.  The District Attorney, however, ultimately dropped all charges after concluding that the “prosecutions were not a good use of limited resources.”  Plaintiffs responded by suing all the involved officers and the Metro Police Department itself in federal court, asserting claims pursuant to 42 U.S.C. § 1983 and Nevada law. 

The district court granted the civil defendants’ motion for summary judgment on all claims except one; i.e., the Plaintiffs’ claim that Detective Tucker violated their First Amendment rights by arresting them in retaliation for chalking anti-police messages on the city’s sidewalks.  Detective Tucker appealed.  After a trip up and down the appellate court ladder, with the case eventually being returned to the federal district (trial) court, Detective Tucker’s motion for summary judgment was eventually granted.  The district court’s stated reason for dismissing the lawsuit was that even though the Plaintiffs had the right to be free from retaliatory arrests, this legal concept was not yet clearly established in the law when Detective Tucker issued declarations for the Plaintiffs’ arrests, entitling him to qualified immunity. Plaintiffs timely appealed.

The Ninth Circuit Court of Appeal reversed.  The sole issue heard on appeal was whether the Plaintiffs’ lawsuit alleging that Detective Tucker had filed a criminal complaint against the Plaintiffs in retaliation for them (the Plaintiffs) exercising their First Amendment freedom of speech rights should have been dismissed.  In other words, should Detective Tucker’s motion for summary judgment have been granted (i.e., the case dismissed) along with the rest of the civil defendants?  In evaluating this issue, the Court agreed with the federal district (trial) court that, assuming the truth of everything the Plaintiffs alleged (as an appellate court is required to do), “a reasonable factfinder (i.e., usually a jury) could conclude from the evidence that Detective Trucker (did in fact violate) Plaintiffs’ First Amendment rights.”  It is a rule of law that “(t)he First Amendment forbids government officials from retaliating against individuals for speaking out.”  In a lawsuit against the government alleging that such retaliation has occurred, the plaintiff must prove that (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. 

Defendant Detective Tucker did not contest an adverse finding on the first two factors, arguing only that Plaintiffs failed to prove that there was a “substantial causal relationship between the constitutionally protected activity” and his subsequent act of arresting them.  In other words, did Detective Tucker arrest Plaintiffs in retaliation for them being critical of the police?  On this issue, the U.S. Supreme Court has established a general rule that if the civil defendant (i.e., a law enforcement officer) had probable cause to arrest the plaintiffs, then it cannot be said that the arrest was retaliatory.  (Nieves v. Bartlett (2019) 139 S. Ct. 1715; 204 L. Ed. 2d 1].)  In this case, Plaintiffs were in obvious violation of a Nevada state law that make it a crime to “place graffiti on or otherwise deface the public or private property, real or personal, of another, without the permission of the owner.” (Nev. Rev. Stat. § 206.330.)  However, the Supreme Court has recognized a “narrow” exception to this rule.  That exception applies when “officers have probable cause to make arrests, but typically exercise their discretion not to do so. . . . (I.e.,) when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals engaged in the same sort of protected speech had not been.” (Id. at p. 1727.)

Looking at the facts of this case, the Court found that it was only Plaintiffs who were arrested despite the fact that others (at least at the courthouse) were doing the same thing—except for not being critical of the police—but were not cited or otherwise charged.  From this simple fact (i.e., the difference in how they were treated), a jury could find that Plaintiffs had been retaliated against simply because they were critical of the police.  The Court held that this was the kind of “objective evidence” required by the Supreme Court in the Nieves decision that showed that the Plaintiffs were “arrested when otherwise similarly situated individuals (i.e., also chalking up the sidewalks), (but) not engaged in the same sort of protected speech (i.e., criticizing the police), had not been.”  In fact, Plaintiffs were able to produce evidence showing that between 2011 and 2013, Plaintiffs attended at least nine chalking protests. At these protests, no law enforcement officers cited the Plaintiffs (or anyone else), or told them that chalking on the city sidewalk was illegal. On one occasion in 2012, marshals actually told Plaintiffs that they could chalk messages on the sidewalk in front of the courthouse. During the July 13 and July 18 chalking incidents described above, no officers stopped or cited Plaintiffs. The Court found that this evidence provided sufficient evidence to show that Plaintiffs were subjected to differential treatment from similarly situated individuals, satisfying the Nieves exception.  It was therefore held that at the very least, “a reasonable jury could find that the anti-police content of Plaintiffs’ chalkings was a substantial or motivating factor for Detective Tucker’s declarations of arrest.  Disagreeing with the federal district court and finding this rule to be clearly established in the law (see Skoog v. County of Clackamas (9th Cir. 2006) 469 F.3rd 1221, 1235; and Ford v. City of Yakima (9th Cir. 2013) 706 F.3rd 1188, 1194-1196.), the Court found that Detective Tucker was not entitled to qualified immunity, remanding the case back to the trial court for further proceedings.

California’s vandalism statute is Pen. Code § 594(a):

Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:  (1) Defaces with graffiti or other inscribed material.  (2) Damages.  (3) Destroys. 

It was the law at one time that “chalking” was not a vandalism under California law, it lacking the element of “permanence.”  (See MacKinney v. Nielsen (9th Cir. 1995) 69 F.3rd 1002.)  Section 594 has since been amended, however, eliminating the need to show that the damage was permanent. Now, it need merely be shown that using something (such as chalk) to “(deface) with graffiti or other inscribed material” is enough to constitute a vandalism.  The fact that the writing can be easily cleaned up is no longer relevant to the issue of whether or not a person has committed a vandalism.  (In re Nicholas Y. (2000) 85 Cal.App.4th 941.)  The importance of this new case, however, is to discuss the retaliatory arrest concept.  As decided here—consistent with the Supreme Court’s Nieves decision—the general rule that the existence of probable cause to arrest normally negates any argument that an arrest was done in retaliation for a defendant exercising his or her right to free speech (referred to as “speaking out” in the decision), and the exception to this rule that if the arrested-for offense is not one that is normally enforced, then arresting someone to punish him or her for being critical of the police (even through the use of profanity) is likely to constitute a “retaliatory arrest,” and in violation of the First Amendment.  Also remember that the use of profanity, even if directed at the police, does not itself provide grounds to arrest a person.  The right to show one’s limited intelligence and lack of character by swearing at (or about) the police is protected by the First Amendment. For example, see Wood v. Eubanks (6th Cir. 2022) 25 F.4th 414, where it was held that a subject wearing profanity (i.e., “F__k The Police”) on his t-shirt and verbally using similar language against six officers who escorted him from the fairgrounds due to his disruptive behavior, was constitutionally (First Amendment) protected speech and insufficient to constitute “fighting words” under Ohio’s disturbing the peace statutes (similar to California’s Pen. Code § 415). As noted by the Wood Court, police officers are held to a higher standard than average citizens when confronted by insulting, abusive language.