Things you should know about racial profiling

by Trey Ross, M.Ed., Esq.policeman

Plaintiff: “The police racially profiled me, harassed me, and then charged me with disorderly conduct and resisting arrest after a traffic stop. I feel humiliated. I’ve heard of people suing policemen and police departments for abusing their power. Can I take them to court over this?”

 

Brief Answer: You may have several options available. To start, the Supreme Court has stated that racial profiling by police officers can be challenged as violation of the Constitution’s Equal Protection Clause. Also, police officers who deny you your constitutional rights can be sued for violating 42 U.S.C. § 1983. In some instances, officers can be given immunity from personal liability but there are situations where officers will be denied immunity and held personally responsible. In addition to liability for violating §1983, tort theories such as malicious prosecution, false arrest, and false imprisonment may also be available.

 

  1. Racial Profiling: An Equal Protection Issue

The US Department of Justice has defined racial profiling as “any police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity.”[1] The term “racial profiling” has become a common way of describing the violation of a constitutional right that has been present since the adoption of the 14th Amendment – that is, no state shall deny to any person within its jurisdiction the equal protection of the laws.[2]

The 14th Amendment’s Equal Protection Clause was created after the US Civil War and it essentially provides that “all persons similarly situated should be treated alike.”[3] One of the original purposes for the law was to prevent southern states from denying rights to America’s newly freed people of African ancestry.

In addition to promoting equal rights, the Equal Protection Clause also prohibits selective enforcement of valid state laws.[4] For example, African-American motorists have successfully challenged traffic stops and searches by law enforcement officers who targeted and harassed black drivers.[5]

The Fourth Circuit’s Court of Appeals has outlined the standard for bringing an equal protection claim (e.g., racial profiling) against law enforcement officers. In US v. Hammond, the court held that to establish that one “is the victim of racially motivated law enforcement, ‘[t]he claimant must demonstrate that the [enforcement policy] had a discriminatory effect and that it was motivated by a discriminatory purpose. . . . To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.’”[6]

To illustrate, in Maryland State Conference of NAACP Branches v. Maryland State Police, the court was presented with statistical evidence that Maryland state troopers targeted nonwhite motorists,[7] and the court also reviewed accounts of the events as told by the plaintiffs. After examining the information, the court found that there was reason to believe that the officers had violated the Equal Protection Clause on a number of occasions.[8]

In most instances where the court decides a person’s constitutional rights have been violated by a government actor, the plaintiff has a right to seek relief for the harm caused. See section B below.

  1. Civil Liability under 42 U.S.C. § 1983

The federal civil rights statute 42 U.S.C. § 1983 provides the following:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.[9]

Therefore, a person—such as a police officer—can be sued in his individual capacity (i.e., he would have to pay for the harm he caused out of his own pocket) for willfully violating the equal protection clause[10] or a government agency can be held liable for the unconstitutional offenses of its law enforcement officers.[11]

To establish a prima facie case (i.e., a case that will not automatically be dismissed as meritless), under § 1983, a plaintiff must assert: (1) the action occurred “under color of law” and (2) the action is a deprivation of a constitutional right or a federal statutory right.[12]

The first element of the test is relatively easy to spot since any state action (e.g., a policeman acting in his official capacity) is an action under color of law.[13] Also, in the context of racial profiling, the second element can easily be satisfied since “[t]he Fourteenth Amendment right not to be stopped on the basis of race was clearly established in 2009.”[14]

  1. Other theories of tort liability

In addition to an equal protection claim and a § 1983 violation, a plaintiff who believes that he has been a victim of racial profiling may also be entitled to hold a police officer liable under tort theories such as malicious prosecution, false arrest, and false imprisonment.

A claim of malicious prosecution is a suit for an injury caused by a criminal prosecution that has been instituted maliciously and without probable cause (i.e, a reasonable belief that the defendant had committed the crime).[15] To bring such a suit, the plaintiff who has been a victim of racial profiling must prove that a criminal proceeding was (1) instituted or continued by the defendant against the plaintiff, (2) without probable cause, (3) with malice, or with a motive other than to bring the offender to justice, and (4) a termination of the criminal proceedings in favor of the plaintiff.”[16]

Also, in the context of racial profiling, claims for both false arrest and false imprisonment[17] are based on an abuse of power by an arresting officer.  The elements of a false arrest and/or a false imprisonment claim are “(1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification.”[18]

Note: Whether the officer had probable cause is often not a defense to a false imprisonment claim.[19]

Summary:

True racial profiling is a violation of the Equal Protection Clause of the 14th Amendment. All people are entitled to equal protection from government actors who attempt to enforce laws in a discriminatory manner. Not only are victims entitled to assert their right to be free of racially-based harassment by law enforcement officers, individuals can also hold officers and agencies liable via tort claims.

[1] Deborah Ramirez et al, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices

and Lessons Learned, 3 (2000), https://www.ncjrs.gov/pdffiles1/bja/184768.pdf

[2] U.S. Const. amend. XIV. § 1.; Whren v. US, 517 U.S. 806, 812-813 (1996) (providing that “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment).

[3] City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

[4] Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir.2004) (providing that an equal protection claim based on selective enforcement of valid laws requires that a plaintiff can show that the defendants’ rational basis for selectively enforcing the law is a pretext for a malicious motive).

[5] E.g., Md. State Conference of NAACP Branches v. Md. State Police, 454 F.Supp.2d 339, 346-347 (2006) (providing that facts supported finding an officer’s stop of an African-American man had a discriminatory effect and intent since the black driver was stopped for no other reason than to be subjected to a search for weapons and drugs).

[6] No. 08-5162. (4th Cir., Nov. 25,2009).

[7] 454 F.Supp.2d at 343 (providing a statement by a Lt. Col. Harvey of the Maryland State Police Department declaring that “[a]fter having the opportunity to review statistics gathered from January 1, 1995 through June 1, 1995 pertaining to these searches, the numbers reveal that Troopers are continuing to target nonwhite subjects”).

[8] Md. State Conference of NAACP Branches, 454 F.Supp.2d at 346-356.

[9] 42 U.S.C. § 1983 (2009); See Monroe v. Pape, 365 U.S. 167 (1961).

[10] See Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011) (providing that an officer is not entitled to a qualified immunity defense if the plaintiff demonstrates “both that the defendant violated a constitutional right and that the right was clearly established”), cert. denied, 133 S. Ct. 211 (2012).

[11] Lohdi v. Fairfax Cnty./Bd. Of SUPERVISORS, No. 1:12-cv-1108 (JCC/JFA) (E.D. Va. December 21, 2012) (providing that a government agency can be liable for acts of its employees if the plaintiff pleads and proves an individual violated §1983 as a result of a (1) government policy or custom of deliberate indifference to the deprivation of constitutional rights; and (2) this policy or custom caused the plaintiff’s injury).

[12] Parratt v. Taylor, 451 U.S. 527, 535 (1981).

[13] West v. Atkins, 487 U.S. 42, 49–50 (1988) (providing that “generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law”); Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).

[14] Martin v. Conner, 882 F.Supp.2d 820 (2012) (referring to Md. State Conference of NAACP Branches, 454 F.Supp.2d 339).

[15] Delk v. Killen, 93 A. 2d 545 (1953).

[16] Harron v. Strader, 761 A.2d 56, 59 (2000).

[17] Id. (providing that the elements of both false imprisonment and false arrest are identical).

[18] Id.

[19] Id. (providing “[t]he Court has consistently held that probable cause is not a defense in an action for false imprisonment based upon a police officer’s warrantless arrest for the commission of a non-felony offense, or upon an arrest by a private person”).

Contributory Negligence and “The Last Clear Chance” standard in Maryland

by Trey Ross, M.Ed., Esq.

Plaintiff:

“My mother passed away last month. She was in a nursing home and one of their new employees failed to provide her with the right dosage of her medication. Before her death, my mother suspected that the new guy was not giving her the right amount of meds. However, the employee appeared very cocky, so my elderly mother didn’t feel comfortable questioning him.

My mother eventually died from complications that could have been avoided much longer had she been given the correct amount of medication.

I’ve been told that, in Maryland, a person who has contributed to her own harm has no right to file a complaint. Is this true?”

Brief Answer:

No exactly. While the doctrine of “contributory negligence” can prevent a person from recovering for her injury, Maryland also recognizes “the last clear chance” doctrine. By establishing that the defendant had the last clear chance to avoid the harm to the victim, the victim can still hold the defendant responsible for her injury regardless of whether the victim was negligent.

Note: Since the plaintiff is solely interested in the law regarding contributory negligence, the response below will not look at other potential defenses the defendant may raise (e.g., assumption of the risk). Likewise, the response below will not examine whether or not the victim’s failure to question her dosage was an act of negligence. So, if you find that you are in a similar situation as the plaintiff here, please consult an attorney before making any final decisions regarding your case.

  1. What is Contributory Negligence?

As always, to establish that a defendant is liable for negligence, the plaintiff will need to show that the defendant had a duty, the duty was breached, an injury occurred, and that the defendant’s breach was the proximate cause of the injury.[1] However, if a plaintiff acts in a way that an ordinary person would not have acted (i.e., the plaintiff was negligent) and is injured, then the plaintiff is generally thought to be the proximate cause of her own injury; thus, the defendant should not be held liable.[2]  

For example, in Coleman v. Soccer Association of Columbia, an accomplished soccer player suffered severe injuries after the crossbar of a soccer goal fell onto his face.[3] The injury occurred after James Kyle Coleman – the soccer player who was injured – jumped up and grabbed the goal’s crossbar to hang from it.[4] As a result, the crossbar fell onto Mr. Coleman.   

At trial, the jury had to decide who was liable for the injuries to Mr. Coleman. Since there was evidence that the soccer goal was not properly secured to the ground, the jury found that the Soccer Association of Columbia (“Soccer Association”) was negligent in its failure to secure the goal.[5] In addition, the jury found that the Soccer Association’s negligence caused the plaintiff’s injuries.[6] However, the jury also found that the plaintiff, Mr. Coleman, was negligent in his act of hanging from the goal.[7]

Since the jury found that the plaintiff contributed to his own injury, the court held that the plaintiff was unable to recover.[8]

While the last clear chance doctrine can be a defense to a contributory negligence claim, it probably would not have been helpful to Mr. Coleman for the reasons discussed in section B below.

  • What is the last clear chance doctrine, and how does it work?

Since the contributory negligence standard can sometimes lead to harsh outcomes, the Court has adopted several exceptions to the rule.[9] One exception is the last clear chance doctrine which allows a negligent plaintiff to prevail if he can establish two things: (1) the defendant was negligent; and (2) “something new or sequential” occurred that gave the defendant a chance to prevent his act of negligence from leading to the plaintiff’s harm.[10]

For example, in Ritter v. Portera, a 17-year-old girl negligently chose to ride on the hood of a car driven by the defendant.[11] After the defendant sped away in his car, the plaintiff fell off the vehicle and was injured as the vehicle dragged her for approximately 20 feet. The Maryland Court of Special Appeals found that, although the plaintiff contributed to her own harm, the defendant had the last clear chance to avoid the injury since he drove the car after having knowledge that plaintiff had carelessly placed herself in danger.[12]

So, although it is generally understood that this doctrine requires that the court examine three separate acts of negligence (i.e., the defendant’s original negligent act, the plaintiff’s contributory negligence, and the defendant’s final negligent act), as illustrated in Ritter, two acts will suffice.[13] What is critical is that the defendant is aware that the plaintiff has placed herself in danger, and the defendant has time to correct his action before causing harm to the plaintiff.[14]

Unfortunately, if the plaintiff’s negligent act is concurrent with the defendant’s negligent conduct, the last clear chance doctrine will not apply.[15]

Note: While the last clear chance doctrine often arises in cases involving automobile accidents, it can also apply in medical malpractice suits.[16]

Summary:

In Maryland, a person who contributes to her own harm will often be solely liable for her harm even if another person’s negligence helped to bring about the injury. However, Maryland has a number of exceptions to this rule; one of which is the last clear chance doctrine. Still, an at-fault plaintiff will only be able to assert the last clear chance doctrine if the defendant had notice of the plaintiff’s peril early enough correct his actions and prevent injury to the plaintiff.


[1] E.g., Schultz v. Bank of Am., 990 A.2d 1078, 1086 (Md. 2010) (citing the four elements of negligence).

[2] Poole v. Coakley & Williams Construction, Inc., 31 A.3d 212, 224 (Md. 2011).

[3] No. 9 (Md. July 9, 2013).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Coleman, No. 9 (providing that exceptions to contributory negligence doctrine evolved to allow at-fault plaintiffs to recover such as in cases where the claimant is under five-years-old, and when the claim is based on strict liability or intentional conduct by a defendant).

[10] Id. (providing “the doctrine of last clear chance developed…to allow a plaintiff to recover, despite his or her contributory negligence, if he or she establishes “something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence” (quoting Sanner v. Guard, 203 A.2d 885, 888 (Md. 1964))).

[11] 59 Md. App. 65 (1984).

[12] Id.

[13] Id. (providing that a defendant was liable under the last clear chance doctrine for a single act of negligence).

[14] Id. (providing that “the [last clear chance] doctrine is not applicable unless the defendant discovered the plaintiff’s peril in time, [and] by the exercise of ordinary care…[the defendant could] have avoided the accident” (quoting  Kolish v. Wash., B. & A.R. Co., 131 A. 822 (1926)); Meldrum v. Kellam Distrib. Co., 211 Md. 504, 511-512 (1957) (providing “[n]otwithstanding previous negligence of the plaintiff, if, at the time when the injury was committed, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie”).

[15]  Meldrum, 211 Md. at 512-513.

[16] Simmons v. Urquhart, 101 Md. App. 85, n. 13 (1994) (identifying the application of the last clear chance doctrine as appropriate in the context of medical malpractice) (citing Sharon Murphy, Contributory Negligence in Medical Malpractice: Are the Standards Changing to Reflect Society’s Growing Health Care Consumerism?, 17 U. Dayton L. Rev. 151, 155 (1991)).