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Violations of Internal Policies Do Not Equate To Constitutional Violations

by Kimberley A. Koester

Too often plaintiffs assume when an internal policy of a police department, jail medical section, or other governmental agency is violated, this is proof of a constitutional violation of the plaintiff’s civil rights. However, courts have ruled to the contrary – focusing on the constitutional right, not the policy in place.

In Smith v. Freland, 954 F.2d 343, 347-348 (6th Cir. Ohio 1992), the Court explained that after “a dramatic chase, Officer Schulcz appeared to have trapped his man at the end of a dark street. Suddenly Mr. Smith freed his car and began speeding down the street. In an instant Officer Schulcz had to decide whether to allow his suspect to escape” Id. at 347.  The Court explained despite a roadblock, “Officer Schulcz could reasonably believe that Mr. Smith could escape the roadblock, as he had escaped several times previously. In any event, Mr. Smith had freed his car from Officer Schulcz’s attempted blockade, and was undoubtedly going to escape from Officer Schulcz, if not the entire police force” and he was “a major threat to the officers manning the roadblock. Even unarmed, he was not harmless; a car can be a deadly weapon.” Id. The Court also noted he could have taken someone from the neighborhood hostage, and the suspect “had proven he would do almost anything to avoid capture; Officer Schulcz could certainly assume he would not stop at threatening others.”  Id. Thus, the Court found it a reasonable use of force when the officer fired one shot at the fleeing suspect in his car, which unfortunately killed him.  However, the plaintiff argued that the officer violated the police department polices. In response, the Court responded:

Furthermore, the fact that Officer Schulcz’s actions may have violated Springdale’s policies regarding police use of force does not require a different result. Under § 1983, the issue is whether Officer Schulcz violated the Constitution, not whether he should be disciplined by the local police force. A city can certainly choose to hold its officers to a higher standard than that required by the Constitution without being subjected to increased liability under § 1983. (Emphasis added)


The Court explained that to “hold that cities with strict policies commit more constitutional violations than those with lax policies would be an unwarranted extension of the law, as well as a violation of common sense.” Id. at 347-348. The Court further articulated that the plaintiff’s “position, if adopted, would encourage all governments to adopt the least restrictive policies possible.”  The Court relied on  Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988) (en banc), wherein “the Seventh Circuit held that a police officer acted reasonably in shooting at a fleeing bank robbery suspect after giving the suspect two warnings, even though he could not be certain the suspect was armed. An expert testified that the officer’s actions had violated the city’s police manual and generally accepted police practices. Rather than considering these local rules, the court limited its attention to whether the officer had violated Garner. We believe this is the proper approach, and we adopt it in this case.”  Smith at 348.

Cooper v. County of Washtenaw, 222 Fed. Appx. 459, 468 (6th Cir. Mich. 2007) stated that the “Supreme Court has been cautious to draw a distinction between behavior that violates a statutory or constitutional right and behavior that violates an administrative procedure of the agency for which the officials work” citing  Davis v. Scherer, 468 U.S. 183, 194, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984) (stating  the Supreme Court has held that officials “do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.”) The issue, therefore, is whether the governmental employee involved “violated the Constitution” and not whether discipline is order for violating an order or procedure of the local government.

Washington v. Starke, 855 F.2d 346, 350 (6th Cir. 1988), looked at a qualified immunity issue for a police officer who allegedly violated a departmental regulation.  The Court stated:

The purpose of the regulation was not to prohibit the use of deadly force, but to offer guidelines and criteria for officers to use in their determination of when deadly force was proper. While the officer in question may have been subject to intra-departmental disciplinary action, his action did not constitute a wrong recognized by federal or state law. Therefore, violation of the regulation does not preclude the application of qualified immunity to the individual officers. (Emphasis added)

The Court in Washington went on to explain any other outcome regarding the regulations would not be logical.  First, the department chief, though intra-departmental regulation, “cannot create a constitutional equivalent of an act of the legislature or of the state that can overturn the clear common law of the state.”  If that could occur, then officers in the same incident, but from different departments, could have different liability.  The Court explained “had officers from the different government entities of the City of Benton Harbor and Benton Township fired at nearly the same instant, which could easily have happened in the present case, the existence of a section 1983 cause of action would depend upon whose bullet actually killed the decedent. If both bullets were equally fatal, it would be illogical for only one officer to be liable.”  Id.  The Court quoted the lower court, who stated “[i]t would be ludicrous to hold that an individual’s cause of action for deprivation of constitutionally protected liberty interest depends upon whose bullet strikes when the state and federal law in force at the time plainly allowed all of the officers to shoot at him.”  Id.  Therefore, there was no basis for liability based on the department regulations.