Claims of police misconduct brought against law enforcement officials must be analyzed from both a factual and legal perspective. This analysis will necessarily involve a three-step process. First, the counsel for the defendant must identify and understand the claimant's theory of recovery as against his client--i.e.., what must the claimant establish in order to recover in an action at law? Second, counsel must consider available defenses. Is the defendant immune from liability to the claimant and, if so, under what circumstances? Finally, if the defendant is not immune from liability, what relief is the claimant entitled to recover? Simultaneously with the performance of this analysis, the defense counsel must also take steps to develop whatever information and documentation may be necessary to defeat the claim, to support all available defenses, and to minimize or avoid any relief sought by the claimant.

Federal Statutory Rights
Violation of a federal statute may also give rise to liability under 42 U.S. §1983 (and other civil rights remedies) if (1) the statute confers substantive rights, and is not merely a congressional declaration of policy; and (2) the statute does not expressly foreclose use of a civil rights remedy. Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981). A few of the federal statutes which will support a Section 1983 claim are:

First Amendment
Although the deprivation of a First Amendment right need not be intentional, evidence of impermissible motivation (e.g., political) is ordinarily required.

Fourth Amendment
A "seizure" must be intentional in order to give rise to a Fourth Amendment deprivation. The "reasonableness" of that seizure (and, hence, its constitutionality) will be determined by an objective standard whereby the nature and quality of the intrusion is balanced against the importance of the governmental interest alleged to justify it.

Eighth Amendment
An inmate's claim based on inadequate medical care or the physical living conditions of his prison will be evaluated under the "deliberate indifference" standard. Inmate suicides are likewise analyzed under this standard. In the event of an uprising, however, prison officials are entitled to use force in a good faith effort to maintain or restore discipline, and will only be held liable for those injuries inflicted with malicious and sadistic intent.

Fourteenth Amendment
A claimant may recover for a denial of procedural due process upon a showing that the defendant intentionally denied that process to which the claimant was constitutionally due.

A claimant may recover for a substantive due process violation upon proof that the defendant acted recklessly or with callous indifference to the claimant's rights. Recovery, however, will only be permitted for a truly horrendous abuse of governmental power. Mere negligence, gross negligence or bad faith will not be sufficient. Finally, deliberate conduct that "shocks the conscience" or "offends the community's sense of fair play and decency" will support a substantive due process claim without proof of the specific liberty or property interest purportedly violated.

In the context of a pretrial detainee denied medical attention, the defendant may be held liable upon a showing of deliberate indifference or proof that the defendant's conduct was grossly negligent or so reckless as to be tantamount to a desire to inflict harm.

In order to recover under the Equal Protection Clause, a claimant must allege and prove "purposeful discrimination."

Did The Defendant Act Under Color Of State Law?
In order to recover under 42 U.S.C. §1983, the challenged conduct must be committed "under color of law." This means that the defendant must have acted in an official, government capacity, clothed with the authority of the state, in order to be held liable. Miga v. City of Holyoke, 398 Mass. 343 (1986). Since cities and towns derive their authority from the state, local government actors are deemed to act "under color of law" whenever they commit acts within their official capacity.

Unlawful Conduct
A police officer acts "under color of law," even if he violates state or local law, provided he acted within the apparent scope of his authority and office.

In order to recover under 42 U.S.C. §1983, the claimant must prove that the defendant's conduct was not only the cause in fact of his injuries, but also the proximate cause of his constitutional or statutory loss. Cause in fact requires an actual, tangible connection between defendant's conduct and claimant's resultant harm. Proximate cause, which is more elusive, requires proof that claimant's loss was reasonably foreseeable to the defendant.

The issue of proximate cause plays a substantial role in claims brought against municipal employers. A municipal employer cannot be held vicariously liable for the civil rights violations of its employees. Monell v. Dep''t of Social Services, 436 U.S. 658 (1978). It can, however, be held directly liable to a claimant whose civil rights were violated as a direct result of a policy, custom or practice adopted or followed by the municipal employer. Santiago v. Fenton, 891 F.2d 373 (1st Cir. 1989). A finding of municipal liability, however, requires proof of an "affirmative link" between the conduct of the municipality and the constitutional or statutory deprivation. Rizzo v. Goode, 423 U.S. 362 (1976).

DEFENSES
Judges and prosecutors are absolutely immune from liability for damages arising from their official acts and decisions. Pierson v. Ray, 386 U.S. 547 (1967). They can, however, be sued for injunctive or declaratory relief. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 735 (1980). Absolute immunity likewise protects against malicious acts, provided such acts are performed as part of a judicial or prosecutorial function. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Police officers who carry out court mandates or who testify as witnesses in judicial proceedings may also enjoy absolute immunity. Jacobs v. Dujmovic, 752 F. Supp. 1516 (D. Colo. 1990), aff''d, 940 F.2d 1392 (10th Cir. 1991).

A police officer is entitled to raise the defense of qualified immunity if, at the time he acted, (1) he was performing a discretionary function; and (2) he did not violate a clearly-established constitutional or statutory right of which a reasonable person in his position would have known. Anderson v. Creighton, 483 U.S. 635 (1987); Matthews v. Rakie, 38 Mass. App. Ct. 490, 493 (1995). In other words, if a police officer reasonably believed that his actions were lawful in light of clearly established law and based upon all information available to him at the time, then he shall be immune from liability. His reasonable belief, however, will be tested under an objective, rather than a subjective, standard. Davis v. Scherer, 468 U.S. 183, 191 (1984); Breault v. Chairman of the Bd. of Fire Commrs. of Springfield, 401 Mass. 26, 32 (1987), cert. denied, 485 U.S. 906 (1988).

A release of liability given in exchange for the dropping of criminal charges may be upheld provided the release was voluntary. Town of Newton v. Rumery, 480 U.S. 386 (1987). The burden of proving the voluntariness of that agreement, however, rests with the defendant. Moreover, refusal to discharge a pretrial detainee from incarceration unless he executes a waiver of his civil rights constitutes a violation of the Fourth Amendment. Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987).

Federal courts adjudicating civil rights claims under 42 U.S.C. §1983 must borrow the state statute of limitations applicable to personal injury actions under the law of the forum state. Thus, in Massachusetts, most Section 1983 actions must be brought within three years from the date the cause of action accrued. Street v. Vose, 936 F.2d 38 (1st Cir. 1991).

RELIEF
A victim unlawfully deprived of his or her civil rights is entitled to recover from the police officer responsible for such deprivation for the out-of-pocket expenses he or she sustained as a result of the defendant's conduct. This may include the victim's "specials"--her medical expenses, lost wages or lost earnings, and future loss of income--as well as her "general" damages--pain and suffering, emotional distress, humiliation, injury to reputation, etc. No damages may be awarded based on the abstract "value" or "importance" of the particular constitutional or statutory right infringed. Memphis Community Dist. v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978). In certain circumstances, however, when a plaintiff seeks compensation for an injury likely to have occurred but difficult to establish, some form of "presumed" damages may be appropriate. Nonetheless, such circumstances remain limited. Domegan v. Ponte, 972 F.2d 401, 417-18 (1st Cir. 1992).

When a plaintiff can establish that he was unlawfully deprived of a constitutional or federally-protected right as a result of a police officer's activities, but cannot prove actual harm, then he is entitled to an award of nominal damages ($1) from the jury.

Punitive damages may be awarded against a law enforcement official if he or she acted with "evil motive or intent," or with "reckless or callous indifference" to the claimant's civil rights. Smith v. Wade, 461 U.S. 30 (1983). A municipality, however, is immune from liability for punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

Under 42 U.S.C. Section 1988, the "prevailing party" in any action brought under Section 1983 may recover "a reasonable attorney''s fee" as part of her costs. Moreover, this fee may include expert witness fees. The award of a reasonable attorney''s fee is within the sound discretion of the trial court, although that discretion is not without limits. The prevailing party should ordinarily recover an attorney's fee "unless special circumstances would render such an award unjust." Blanchard v. Bergeron, 489 U.S. 87 (1989). A defendant, as the "prevailing party," may only recover attorney''s fees "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even if not brought in subjective bad faith." Christianberg Garment Co. v. EEOC, 434 U.S. 4012 (1978).

INVESTIGATION
The defense counsel must take reasonable steps to develop whatever information and documentation may be necessary to identify and defeat the civil rights claim, to support all defenses available to his client, and to minimize or avoid any relief sought by the claimant. This information and documentation will come primarily from three sources: (1) the claimant; (2) the defendant; and (3) third parties.