In concert with our legislative advocacy and member education and support, the National Police Accountability Project files amicus briefs in the U.S. Supreme Court, U.S. Courts of Appeals and state appellate courts in cases involving abuses of power by police and corrections officers, as well as other government officials. Our amicus curiae work is motivated by a recognition that positive rulings in significant cases addressing police and corrections officer misconduct stand to create powerful case law that can expand access and avenues to recourse for citizens whose civil rights have been violated.

Selected Amicus Briefs

This brief argues that application of Louisiana's one-year statute of limitations for § 1983 actions presents significant challenges that are specific to victims of police violence, resulting in an inability to obtain redress for civil rights violations and a perpetuation of police misconduct. Such application is inconsistent with the federal policy underlying § 1983 claims, which is to provide a federal remedy in federal court for violations of an individual's civil rights.

Although under 42 U.S.C. § 1988, courts are instructed to borrow and apply state statutes of limitations to § 1983 claims, courts may do so only if that application is not inconsistent with federal policy underlying those claims. As argued in this brief, applying Louisiana's limited one-year statute of limitations to § 1983 claims such as those brought by Mr. Monroe is inconsistent with the federal policy underlying those claims. Therefore, Louisiana's limited one-year statute of limitations should not bar Mr. Monroe's § 1983 claim.

A huge thank you to Akerman LLP for their work on this brief and Law Firm Anti-Racism Alliance.

Reed v. Goertz deals with the case of Rodney Reed, who was convicted of murder after police declined to test key pieces of evidence for DNA and investigate other suspects (including the victim's police officer fiancé). There were numerous investigation failures and testi-lying about those failures by the law enforcement officers involved in the case. You can read more about Mr. Reed's fight for exoneration here.

The issue in the case is whether a Section 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation or at the moment the state trial court denies DNA testing.

This brief, written in partnership with the Law Enforcement Action Partnership (LEAP), focuses on the importance of DNA testing in light of police misconduct and investigation failures as well as the need for accessible judicial processes to correct policing failures and ensure the integrity of the criminal legal system.

Our brief in Gonzalez v. Trevino et. al. explains that illegal arrest for disfavored speech is a serious and systemic problem, and provides concrete illustrations of this phenomenon with a particular focus on how law enforcement targets communities of color.

The majority panel’s decision enlarges the realm of police encounters where less lethal force can be applied for a long enough period to become deadly. In light of the number of deaths that result from prolonged police dog maulings, tasings, and restraint holds, immunizing these forms of force against a subdued individual could lead to more avoidable police killings in the Second Circuit. While the majority’s opinion seeks to justify its divergence from other circuits because the officers may have feared a subdued Mr. McKinney would resume resistance, that possibility was equally present in the out-of-circuit cases denying qualified immunity for continued canine force. Finally, the majority opinion is alarming given the prevalence of police brutality against people experiencing mental health crises—a group that is often on the receiving end of unjustifiable police violence. The Court should grant en banc review on this issue of exceptional importance.

In Irizarry v. Yehia the plaintiff is Abade Irizarry, a journalist/blogger who attempted to film a DUI stop until a police officer obstructed his ability to film first by standing in front of him and then by shining a light into his camera. The District of Colorado found a constitutional right to record the police but granted the officer qualified immunity because Plaintiff: (1) was unable to identify a case in the 10th Circuit recognizing the right to record; and (2) the weight of authority from other circuits did not clearly establish that standing in front of a person filming and shining a light in their camera to obstruct recording violated a First Amendment right to record.

B.W. v. City of New Orleans et. al. is the case brought by the parents of B.W., a minor who was killed during an interaction with New Orleans police officers who failed to activate their body-worn cameras (BWCs) at the time of the fatal incident.

NPAP’s brief argues that such failure to activate BWCs, in defiance of departmental policy mandating activation, warrants spoliation sanctions. Under the rules of civil procedure, “spoliation” refers to the destruction, alternation, or loss of information or evidence potentially relevant to a litigation or investigation. NPAP argues that this failure to activate BWCs represents an intent to deprive cilivilan plaintiffs of the BWC footage, and as such merits court sanction.

Moreover, we argue that there are meaningful policy considerations that support granting spoliation sanctions against officers who fail to activate their BWCs:

First, sanctions are necessary to advance the Court’s commitment to truth in testimony and accuracy in judgment. BWCs provide civilians, police officers, and the courts with objective records of events in dispute. Several cases demonstrate that without video recordings, courts can be misled about the nature of police-civilian encounters. Second, sanctions will ensure that the costs to the public of BWCs do not outweigh their benefits. BWCs come at a substantial monetary cost to taxpayers, and the BWC’s capacity for constant surveillance can take a toll on civil liberties. The public benefit of the BWC—the camera’s function to document police officer conduct—is completely lost when police officers are effectively granted sole discretion over when to activate their BWCs. Finally, internal department discipline is not effective at ensuring compliance with department BWC policy because officers are unlikely to face meaningful consequences for violations of department policy. Five of the six NOPD officers involved in this very case had a history of BWC violations that went undetected and unpunished.

An external check from the Court, in the form of the threat of spoliation sanctions, is necessary.

Daniels v. City of Pittsburgh et. al. addresses the case of Mark Daniels, who was running away when he was shot in the back and killed by a Pittsburgh police officer. Mr. Daniels was not armed but the officer believed that Mr. Daniels had shot at him earlier the same day. The district court granted summary judgment for the defendants relying in large part on the officer's unsworn statements in his use of force report even though there was evidence in the record contradicting these statements.

NPAP’s brief focuses on the fact that officers providing statements during internal affairs investigations or in the wake of critical incidents may be incentivized to protect themselves and their fellow officers from suffering the consequences of their misconduct by constructing a narrative in which their actions were justified. Research has shown that there are some officers who not only misrepresent facts when giving unsworn statements, but do so when giving sworn testimony, including when they apply for warrants and testify during depositions and at trial.

We argue that courts must consider whether a rational fact-finder could disbelieve the officer’s statements based on all of the evidence. Here, the District Court failed to apply the correct summary judgment standard because it accepted the officers’ self-serving statements without questioning the credibility of the officers or the veracity of their statements.

This brief urges the Court to require disclosure of the social media monitoring policies requested by appellants in the case. A huge thank you to the Thomas Merton Center and NPAP Board Vice President Jon Feinberg of Kairys, Rudovsky, Messing, Feinberg & Lin.

Vega v. Tekoh presents the question of whether Section 1983 remedies are available when a police officer takes an un-Mirandized statement and causes it to be used in the suspect's criminal trial. NPAP members John Burton and Paul Hoffman are representing Mr. Tekoh.

NPAP's brief focuses on the importance of Section 1983 remedies to deter officer misconduct during interrogations. The brief also highlights the existing difficulties of bringing a civil rights claim to challenge coerced confessions and how further restrictions would shrink the already narrow set of circumstances where relief is available.

In AB v. County of San Diego the decedent was handcuffed, hog-tied, hooded in a bloody spit mask, and subjected to 7 minutes of forceful prone restraint by several officers who pressed their knees and fists down on his back. San Diego county's designee admitted at deposition that officers received no training on asphyxia, and were in fact affirmatively encouraged to use substantial body weight on a prone subject to achieve compliance with verbal commands. 

NPAP's brief addresses the importance of Monell claims based on training deficiencies. In particular, the brief covers how the panel's requirement that a plaintiff show a pattern of similar violations is inconsistent with Canton and undesirable from a public policy standpoint (i.e. a plaintiff should not have to point to "X" number of people killed or injured to show that a police department needs to improve its training).

From the brief:

Plaintiffs have never been required to show a trail of constitutional violations where the need for training is so obvious that the failure to provide training amounts to deliberate indifference. The prone-restraint hold used by the officers in this case poses an obvious danger, yet the San Diego Sheriff’s Department failed to offer any training on the proper methods for using such restraint. This failure to train amounts to deliberate indifference. In deciding otherwise, the panel’s decision flouts the precedent of this Court and conflicts with the decisions of other circuit courts.

NPAP members John Fattahi and Dale Gallipo are counsel for the petitioners.

Dundon et al v. Kirchmeier et al is a case challenging law enforcement's violent response to the 2016 Dakota Access Pipeline protests. The brief focuses on how the use of less than lethal force against protesters can constitute a seizure under the Fourth Amendment.

NPAP members Rachel Lederman, Mara Verheyden-Hilliard, and Janine Hoft are representing plaintiffs-appellants in the case.

Harris v. City of Newark is a New Jersey Civil Rights Act (NJCRA) case that asks whether a defendant is entitled to pursue an interlocutory appeal on a qualified immunity denial in civil rights cases brought under the NJCRA.

New Jersey has not adopted the federal collateral-order doctrine or any related jurisprudence on qualified immunity (QI) appeals. However, the city of Newark is urging the New Jersey Supreme Court to do so in this case. Specifically, Newark is arguing that interlocutory appeals of QI denials are necessary to "preserve traditional immunity defenses" and prevent irreparable injury to the city (in the form of litigation costs and interference with government duties).

NPAP's brief challenges this claim by the city of Newark, refuting the purported public policy benefits of qualified immunity interlocutory appeals, and, by extension, the public policy benefits of QI, since the reason that courts tend to allow for interlocutory appeals of QI denials is primarily to facilitate the overall goals of QI.

In Fenty et al v. Penzone et al, the defendant failed to fully comply with the magistrate judge's order to deduplicate their email production. When the plaintiffs raised the issue, the magistrate ordered the defendant to perform threading of responsive emails and ordered the parties to split the $1400 cost to complete the process. The district court affirmed the magistrate's order.

NPAP's brief focuses on how this order could deter indigent clients from bringing civil rights cases in the future (or at least chill them from aggressively pursuing the information they are entitled to in discovery).

In Egbert v. Boule the Court is deciding whether a Bivens action exists for First Amendment retaliation and Fourth Amendment violations committed by federal officers carrying out immigration functions.

NPAP's brief argues that immigration law enforcement officers often engage in policing conduct (and misconduct) that has nothing to do with border security or immigration enforcement. The brief also responds to the argument that Bivens liability will lead to under-enforcement by providing indemnification data and uplifting Professor Joanna Schwartz's research on this issue.

A huge thank you to NPAP member Joey Kolker and his teammates at Orrick for serving as counsel and all of their work on this brief.

NPAP's brief for Rockett v. Eighmy elucidates why Section 1983 suits are an important remedy for plaintiffs whose constitutional rights have been violated, and why it is especially important in cases where plaintiffs have suffered harms due to a judge's unconstitutional conduct. 

We filed our brief for CYAP v. Wilson in support of Carolina Youth Action Project and on behalf of thousands of of South Carolina students who have been arrested and charged for violating the state's vague statutes criminalizing typical and constitutional behavior in schools. 

In Hernandez v. Mesa, the parents of 15-year-old Mexican national Sergio Adrian Hernandez Guereca sued US Border Patrol Agent Jesus Mesa, Jr. Mesa was standing on US soil and Guereca on Mexican soil when Mesa shot and killed Guereca. This brief argues that Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) provides a cause of action against immigration enforcement agents as it does for all other federal law enforcement agents.   

Thompson v. Clark

Thompson v. Clark asks whether an individual seized during criminal proceedings in violation of the Fourth Amendment must prove that the criminal proceedings ended in a manner indicative of their innocence before bringing a section 1983 action to redress the violation of their constitutional rights. This brief argues that criminal proceedings terminating in a manner indicating innocence is not a requirement for individuals seeking a 1983 claim.

This brief argues that pretrial detention in the absence of probable cause is a violation of the Fourth Amendment and as such 42 U.S.C. Section 1983 provides recourse for such violation.

This brief argues that appellate jurisdiction does not extend to an appeal over the district court’s denial of qualified immunity based on factual disputes.

This brief argues that the First Amendment protects the right to record the police and that such recordings are a vital tool of community oversight of police.

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