We have all scene the video of the police officer kneeling on Mr. Floyd's neck and his subsequent passing away. We have also heard the outcry about criminal charges against the police officers involved. I am a civil trial lawyer who has handled civil rights cases on behalf of victims and have also defended law enforcements and other officials in civil rights claims brought against them. Today, I'm going to provide the analysis of potential claims available to Mr. Floyd's family and/or his estate.
A civil rights claim in this matter would be brought under 42 USC Section 1983, typically called 1983 claims for short. The constitutional provision that would apply would be the fourth amendment because Floyd was restrained/arrested or in-custody. Because he did not yet see a judicial officer the fourth amendment instead of the fourteenth amendment would apply.
The standard for a claim under the 4th Amendment is the objectively unreasonable standard. This is a standard that looks at the totality of the circumstances in determining whether law enforcement was reasonable. The factors articulated in Graham v. Connor include the following:
The severity of the crime at issue;
Whether the suspect poses an immediate threat to safety of the officers or others; and
whether the suspect is actively resisting.
Based on the video evidence, it appears that the factors weigh in Mr. Floyd's family's side. The crime was a property crime. He allegedly tried to pass a counterfeit $20 bill. He did not appear to be a safety threat to officers or bystanders and he did not appear to be actively resisting.
Under Section 1983, the Graham standard will apply to a claim against the police officer who had his knee on Floyd's neck, and the other officers for not intervening and stopping the alleged unreasonable force. The claim against the offending officer would be an excessive force claim and the claims against the other officers would be a failure to protect claim.
The problem that I see with the individual claims against the officers is that they have been fired. In cases where I have had officers fired because of the specific event that generated the civil rights claim, the officers many times to do not have coverage or the municipality will not defend or indemnify them. So, if the offending officer(s) do not have private law enforcement coverage there may be difficulty receiving monies under this theory of recovery.
If one of my staff members were to do something wrong in my office, I would be responsible for the damage under the legal principal of Master/Servant or Principal Agent. My responsibility in latin would be called Respondeat Superior. In Civil Rights claims as a general rule, respondeat superior doesn't apply, so the City or Police Department would not be responsible for the damages just because of the nature of the relationship of the police officers and the police department. Instead, you have to show some culpability on the City or the Department.
This culpability was articulated by the US Supreme Court in a case titled Monell. Thus the claim against the City or the Department is called a Monell claim. The standard is not objectively unreasonable like above, instead Floyd's family will have to show that the City or the Department had some custom, policy or practice that fostered the civil rights violation. In most cases, a person bringing the claim will have to show some type of pervasive problem in the police department. In some instances one incident, with the right facts, is enough to support the claim.
Whether there are enough facts to support a Monell claim, I can't tell at this time. However, there were some reports that the officer involved had other complaints and/or claims before this event. If this is true, the family can argue that the City and/or the Department ratified this officer's behavior.
Unlike a civil rights claim which is usually. based on a constitutional violation. A negligence claim is based on state tort law. The facts suggest that there may be a state wrongful death action or negligence claim against the City or the Department. Typically, state law claims have to follow some sort of notice requirement because of sovereign immunity issues.
Other potential theories of liability against the offending officer may include negligent supervision/retention and/or negligent hiring claim, depending on the facts that develop.
On another note, I believe it was reported that one or two of the other officer(s) who failed to intervene may have just started their jobs. If this is the case, there may be claims for negligent hiring and/or training.
All in all, this is a sad occurrence, and hopefully some good will come out of it for the Floyd family and for the nation.