• 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.