Amicus Brief for Lynn v. Thompson

Commonwealth of Massachusetts Supreme Judicial Court
No SJC-8487

City of Lynn

Appellant

v.

Terrance Thompsom

Defendant-Appellee

ON APPEAL FROM THE MASSACHUSETTS APPEALS COURT

AMICUS CURIAE BRIEF OF

The Police Practices Coalition,
The National Police Accountability Project of the National Lawyers Guild,
The Lawyers Committee for Civil RIghts, and
The American Civil American Civil Liberties Union of Massachusetts

TABLE OF CONTENTS

Table Of Authorities	ii
Interest Of Amicus Curiae	1
Issue Presented	2
Statement Of The Case	2
Statement Of Facts	2
Summary Of The Argument	3
Argument	5

-i-

TABLE OF AUTHORITIES

Cases

Beck v. City of Pittsburgh, 89 F.3d 966, 974, ' 975 (3rd Cir. 1996)	9
Bielevicz v. Dubinson, 915 F.2d 845, 851 (3rd Cir. 1990)	9
Bordanaro v. City of Everett, 871 F.2d 1151, 1157, (1st Cir. 1989)	9
City of Canton v. Harris 489 U.S. 378, 388-89 (1989)	3, 7, 9, 17
Dobos v. Driscoll, 404 Mass. 634, 658 (1989)	9, 10, 11, 12
Foley v. City of Lowell, 948 F.2d 19 (1st Cir. 1991)	8, 11, 12
Monell v. Department of Social Services of the City of New York 436 US 658, 690 (1978)	3, 4, 6, 7
Monroe v. Pape, 365 U.S. 167, 180 (1961)	6, 14
School District of Beverly v. Geller	10, 13
Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985)	9

Other Authorities

42 U.S.C. ' 1983	5, 9, 12, 16
M.G.L. c. 12 '' 11I and 11H	1, 8, 12
M.G.L. c. 258 ' 2	8

-ii-

INTEREST OF AMICUS CURIAE

This brief is filed on behalf of a number of civil rights groups that have been involved in issues of police misconduct and violations of civil rights by police officers and other law enforcement personnel acting under color of law. The amici groups have an interest in protecting citizens whose civil rights have been violated by police officers and other law enforcement personnel.

The amici groups each have an interest in curbing misconduct by police officers through the courts, and have advocated for effective discipline of police officers. This creates an interest in this case, where the Plaintiff-Appellee City of Lynn has taken the type of discipline that the amici groups have sought in repeated lawsuits brought under 42 USC ' 1983 and MGL c. 12 11I and 11H, the Massachusetts Civil Rights Act.

The amici groups have an interest in seeing that police officers who abuse their power and the public trust by the use of excessive force and other violations of civil rights are disciplined adequately and discharged as police officers where appropriate. The amici groups have an interest in seeing that municipal defendants are not punished for taking the action necessary to curb police abuse.

ISSUE PRESENTED

Whether a city’s appropriate response to curb repeated constitutional violations by an individual employee can be set aside by an arbitrator’s decision to reinstate a police officer after the officer has twice broken the arm of citizens whom he has placed under arrest, resulting in at least two civil rights lawsuits against the city, and where the officer has at least twice been found to have violated the civil rights of those he has arrested.

STATEMENT OF THE CASE

Amici adopts the statement of the case as set forth in the brief for the City of Lynn.

STATEMENT OF FACTS

Amici adopts the statement of facts as set forth in the brief for the City of Lynn.

SUMMARY OF THE ARGUMENT

The plaintiff City of Lynn has twice been sued for excessive force when the same police officer twice broke the arms of citizens. The plaintiff city has attempted to remedy this unconstitutional conduct by its employee by discharging the officer.

This is precisely the response a municipality should make to protect its citizens, as the amici curia organizations have urged this Court and the federal courts for years. Monell v. Department of Social Services of the City of New York, 436 US 658, 690 (1978) Canton v. Harris,489 U.S., 378, 388-89 (1989), Where the City of Lynn has taken such action, this Court should support the City’s action, as the Appeals Court has done, and not allow an arbitrator to undermine it.

To do so, this Court should uphold the lower court’s decision reversing an arbitrator’s decision to reinstate a police officer who twice has engaged in constitutionally abusive conduct. While an arbitrator’s decision may be set aside only where the award "offends public policy@ [MGL c. 150C '11], protect civilians from warrants reversing an arbitrator'’ decision.

The constitutional rights of citizens to be free from unreasonable and excessive physical harm from public officials is clearly a right that is more important than the contract rights the arbitrator is seeking to uphold. Similarly, the City has a constitutional obligation to correct unconstitutional policies and practices that tolerate the use of excessive force and other constitutionally violative conduct.

If the city did not discharge defendant Thompson, the message would be delivered, as it has been too often, that not just defendant Thompson but all City of Lynn police officers are above the law and need not heed the constitutional rights of citizens whom they arrest or otherwise stop. The message would be delivered that it is okay to break the arms of those they arrest.

Yet it is well established that this is not acceptable: municipalities will be held accountable for failing to discipline police officers who abuse citizens. Where courts, in case after case, have required cities to do exactly what Lynn is doing, it is an abuse of arbitrator’s discretion to reinstate an officer, as this would undermine the case law established under Monell and 42 U.S.C. ' 1983.

A reversal of the lower court’s ruling would thwart the efforts of the civil rights community, as well as affirmative acts of local governments and police departments, to stop the use of excessive force by police officers. For this reason, this Court should affirm the public policy requiring local governments to effectively supervise and discipline their officers and to dismiss those officers who abuse the authority inherent in their positions of employment and whose abusive conduct is an immediate threat to the general public.

ARGUMENT

MUNICIPALITIES MUST BE ALLOWED TO CONTROL THE UNCONSTITUTIONAL CONDUCT OF ITS EMPLOYEES AND TO PROTECT ITS CITIZENS FROM INJURY BY POLICE.

The City of Lynn must be allowed to control the unconstitutional conduct of its employees because municipalities are required, under 42 U.S.C. ' 1983, to protect citizens from harm by governmental officials. Section 1983 is the primary vehicle afforded private citizens for addressing constitutional deprivations by local law enforcement.

Originally enacted as the Ku Klux Klan Act of 1871, Section 1983 was intended to combat the widespread practices of local officials, including rank and file municipal officers, whose unwritten codes of conduct undermined and impeded the implementation of State and Federal Reconstruction laws.

The United States Supreme Court found it abundantly clear@ that Congress passed Section 1983 Ato afford a federal right ... because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies.@ Monroe v. Pape, 365 U.S. 167, 180 (1961).

Municipalities are included as among those persons and entities to whom ' 1983 applies. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690 (1978), where the Supreme Court explained that municipalities are liable for official policies that are determined to be unconstitutional. Monell held that municipalities may be sued for constitutional deprivations that result from a governmental custom even if the custom is not formally adopted by the policymakers. See Id.

According to the Court in Monell, Congress included the phrase Acustoms and usages@ in the text of ' 1983 to ensure that states are held accountable for the unwritten unconstitutional practices of state officials where the customs and usages have become so deeply embedded that they have the force of law. Id. at 691.

In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court expanded the scope of ' 1983 municipal liability to include a failure to adequately train or discipline police officers as a basis for liability when municipal deficiencies were the moving force behind the constitutional injury and were a result of the city's deliberate indifference to the constitutional rights of its citizens.1 A municipality’s disregard of known or obvious misconduct constitutes such deliberate indifference. See Id. at 410.

Under this standard, the City of Lynn became vulnerable to liability under ' 1983 if it did not take action to halt the rampant excessive conduct of Officer Thompson and civilians remained at risk because Thompson has been allowed to remain in uniform and to use his badge and weapon.

In Foley v. City of Lowell, the First Circuit held the City of Lowell liable, under the deliberate indifference standard, after Plaintiff Foley was brutally beaten by police officers. See Foley v. City of Lowell, 948 F.2d 10 (1st Cir. 1991). The jury in Foley found liability against the City as well as the offending police officers. The jury found that the City inadequately trained and supervised its officers and allowed the Lowell Police Department Ato operate under constitutionally offensive policies@ that resulted in Aa policy of tolerating imbrutage.@ Id. at 14.

The plaintiff-appellant seeks to avoid such a result by taking prophylactic action in appropriately disciplining officers, like defendant Thompson, who cross the line from proper into unacceptable conduct.

Massachusetts courts have also urged municipalities to protect its citizens from physical harm by the police, under federal and state civil rights laws. See 42 U.S.C. ' 1983 and M.G.L. ch. 12, ' 11I. See also MGL ch. 258 ' 2.

The First Circuit, in adopting the deliberate indifference standard, held that once a pattern of misconduct becomes evident and a department condones or tolerates such behavior it is logical to conclude that a constitutional violation is bound to occur in the future. See Bordanaro v. City of Everett, 871 F.2d 1151, 1157 (1st Cir. 1989)(citing Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985)). 2

In Dobos v. Driscoll, the Supreme Judicial Court of Massachusetts declared that municipalities and government officials can be liable when the City acts in a manner Adeliberately indifferent to the constitutional rights of the public,@ such as when police departments fail to discipline their officers for misconduct. See Dobos v. Driscoll, 404 Mass. 634, 658 (1989) (citing Canton v. Harris, 489 U.S. at 378).

In the case, four supervisory officials were found liable, under 42 U.S.C. ' 1983, and the Commonwealth was found negligent under the Massachusetts Tort Claims Act,3 as a result of a State police trooper’s misconduct. Dobos, at 658.

The Court found that the defendant officer had a history of misconduct. Despite his police captain’s written recommendation that he be removed from field operations and have no direct contact with the public, supervisory officials failed to investigate prior misconduct allegations and failed to follow established disciplinary procedures that would have protected citizens from constitutional injuries. See Id. at 651- 653. Interestingly, testifying supervisors suggested that Defendant police officer's position as a negotiator for his union led them to treat him differently from other officers. See Id. at 653.

These cases demonstrate a much stronger justification for the City of Lynn than this Court has recently found in School District of Beverly v Geller, S.J.C. No. 08488, in setting aside an arbitrator’s finding reinstating a teacher accused of pushing and shoving several students.

If the risk of physical harm from a teacher who has shoved or pushed two students is enough to override an arbitrator’s decision, then certainly the potential harm from a police officer who has already broken two arms warrants similar treatment. If a government employer is justified in removing a teacher who puts his hands on students, then a municipal employer certainly must be permitted the same opportunity to stop an armed man whose badge and uniform are license to use his weapons, especially where the armed man has shown his inability to control his use of force.

The City of Lynn must be allowed to discharge an officer who physically abuses citizens in his capacity as an officer.

A.The City of Lynn has an affirmative duty to protect its citizens from constitutional injury by the police.

In the present case, the City of Lynn, in attempting to dismiss a police officer was doing what this Court, in Foley and Dobos and other decisions, have directed municipalities to do. Where an officer, like defendant Thompson, whose improper conduct and use of force has twice violated citizens' constitutional rights, resulting in ' 1983 claims against the officer and the City, the city has a duty to reign in such conduct.

The plaintiff City of Lynn was plainly acting within the affirmative duty which this Court has reaffirmed to protect its citizens from physical injury and violations of constitutional rights by police, as established by 42 U.S.C. ' 1983, by M.G.L. ch. 12 ' 11I and by case law interpreting these statutes.

Like the City of Lowell in Foley v. City of Lowell, and the Commonwealth in Dobos v. Driscoll, the City of Lynn faces liability for condoning and failing to put a stop to its defendant police officer's unconstitutional conduct. See Foley, 948 F.2d at 14; Dobos, 404 Mass. at 658. The City of Lynn is properly seeking to avoid such liability and in so doing, is taking necessary action to protect civilians from abusive police officers.

The plaintiff City of Lynn is acting in a manner that is consciously concerned with protecting the constitutional rights of the public. The plaintiff city seeks to establish a municipal policy and custom of not tolerating police brutality and misconduct. The decision of the arbitrator would undermine this proactive prophylactic disciplinary step. That insures police safety.

This Court recently upheld the obligation of a government employer to discharge employees who use physical force. See School District of Beverly v. Geller, supra. In Geller, this Court upheld as sufficiently in the interest of public safety the discharge of a school teacher who has shoved a sixth grade student, such that an arbitrator could not set it aside. Certainly the discharge of a police officer who has twice already broken the arm of a civilian he was arresting is at least equally vital to concerns of public safety.

If the arbitrator's decision were to stand, this would not only subject the plaintiff City of Lynn to civil liability, but would deliver the message to defendant Thompson, and, indeed, to all City of Lynn police officers, that they are above the law and immune to punishment or discipline for abusing the rights of citizens.

For this reason, this Court should affirm the lower court's ruling, for to do otherwise would be to punish the Plaintiff City of Lynn for following prior decisions of this Court and attempting to remedy constitutionally violative behavior.

B. The Arbitrator’s decision undermines and impedes the implementation of Civil Right laws.

The City of Lynn's efforts to protect the constitutional right of its citizens, under Federal and State Civil Rights laws, should not be impeded by the decision of an arbitrator. As the United States Supreme Court taught in Monroe v. Pape, 42 U.S.C. ' 1983 was enacted to ensure that the constitutional rights of citizens, guaranteed by the Fourteenth Amendment, were not undermined by the acts of state and local agencies. Monroe v. Pape,365 U.S. at 180.

The arbitrator’s decision to reinstate the defendant police officer, who has a history of brutality and civil rights violation, undermines the purpose of ' 1983 and the Massachusetts Civil Rights Act, to protect citizens from harm by government officials. The arbitrator’s decision impedes the City of Lynn’s efforts to supervise properly the conduct of its officers.

If the arbitrator’s decision were to stand, proper policy decisions by the plaintiff city regarding the supervision and discipline of police officers may, at any time, be disregarded or overruled by the decision of an arbitrator.4 This delivers the message that police officers are above the law and can avoid being held accountable for their misconduct, regardless of how that conduct may offend the constitutional rights of citizens.

The arbitrator’s decision must be viewed in the perspective of the sanctity of the United States Constitution and the Massachusetts Declaration of Rights. The Bill of Rights and the Massachusetts Declaration of Rights affirm well established rights to be free from unreasonable search and seizure, free in our persons and safe from attack by government police.

These are rights we each hold not just as Americans, but as human beings. While we may recognize the sanctity of an arbitrator's decision, no arbitrator’s decision can be allowed to undermine these rights, the very rights upon which our nation was founded.

C. The Arbitrator has exceeded his authority by requiring the City of Lynn to violate established case law under Section 1983.

The Arbitrator's decision to reinstate a police officer, who has a history of known misconduct and police brutality, to his position of employment on the Lynn Police Department effectively requires the City to engage in conduct prohibited by Federal Civil Right laws.

In doing so, the arbitrator has exceeded his powers, as his decision directly conflicts with dominant and well-defined civil rights laws and requires the City of Lynn to engage in conduct prohibited by those same laws. 42 U.S.C. ' 1983 and the Massachusetts Civil Rights Act protect citizens from physical injury by government officials and require municipalities to act with reasonable care to prevent harm caused by the police.

The arbitrator's decision also requires the City of Lynn to engage in conduct that violates its affirmative duty to protect citizens from injury by police. The award does so by requiring the City to employ a officer, who while performing his duties, has used excessive force, breaking citizens’ arms, and repeatedly engaging in conduct unbecoming an officer.

In effect, the arbitrator’s award requires the City to act with deliberate indifference to the constitutional rights of its citizens, in violation of Canton v. Harris, 489 U.S. 378 (1989). This wrongfully places the City of Lynn at risk of municipal liability in future civil right claims.

CONCLUSION

The City of Lynn must be allowed to control the unconstitutional conduct of its employees as it has an affirmative duty under Federal and State civil rights laws to protect citizens from physical harm by the police. An arbitrator may not undermine nor impede the City’s efforts to implement Federal Civil Right laws, as mandated by the Fourteenth Amendment, especially where it places the safety of citizens in jeopardy.

The arbitrator has exceeded his powers because his award violates dominant and well defined public policy protecting citizens from constitutional deprivations by the police.

If the City of Lynn is not permitted to terminate Terry Thompson, he will once again be working as a police officer, wearing a uniform and badge and carrying a gun and baton. It is likely that he will once again needlessly hurt someone with whom he comes into contact while working as a police officer.

• ¹ See also Board of County of Bryan County v. Brown, 117 S. Ct. 1382 (1997).
• ² See also, Beck v. City of Pittsburgh, 89 F.3d 966, 974-975 (3d Cir. 1996) (stating official tolerance of repeated conduct facilitates unlawful actions in the future). A showing by the plaintiffs that the municipality tolerated known misconduct by police officers is sufficient to provide an inference that a municipal custom existed and was the proximate cause of the constitutional injury. Bielevicz v. Dubinson, 915 F.2d 845, 851 (3d Cir. 1990).
• ³ See M.G.L. ch. 258 (1986 ed.).
• ⁴ See Myriam E. Gilles, Breaking the Code of Silence: Rediscovering A Custom@ in Section 1983 Municipal Liability, 80 B.U.L. Rev. 17, 19 n. 12 (2000). (finding that A Police Bill of Rights@ severely limits the ability of police administrators to suspend or dismiss an officer, even in cases where the officer is convicted of a felony).

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