St. Paul Police Officer Jesse Zilge is at home this week, pending the results of an expedited internal affairs investigation. Video uploaded to Youtube on August 28th shows Zilge kicking an unarmed man in what appears to be either the face, throat, or chest. While the video clearly raises concern with regard to the officer’s conduct, it is particularly disconcerting in light of our recent jury trial victory against St. Paul Police Officer Adam Bailey, as it also raises the serious question of whether there is a pattern and practice of excessive force and police misconduct in the St. Paul Police Department.
Based on the video, it appears the victim will have a viable civil lawsuit against Zilge for excessive force, a claim made possible by the Fourth Amendment of the United States Constitution via Title 42 U.S.C § 1983. United States District Court Judge David Doty described such a claim in Carter v. Bailey:
The Fourth Amendment right to be free from unreasonable seizure protects against the use of excessive force in the apprehension or detention of a person. See Graham, 490 U.S. at 395. “To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (citations omitted). “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Cook v. City of Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009) (quoting Graham, 490 U.S. at 396). When evaluating the reasonableness of an officer’s use of force, a court considers “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of defendants or others, and whether he is actively resisting arrest orattempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The `reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). The “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. at 396-97; see Brown, 574 F.3d at 496. In short, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Cook, 582 F.3d at 849 (8th Cir. 2009) (quoting Graham, 490 U.S. at 396).
According to the St. Paul Pioneer Press, Zilge’s victim appears to have retained counsel. In addition to a probable lawsuit for excessive force against Zilge, the St. Paul Police Department may also be a named defendant in the suit if it can be established that there is a pattern and practice of such actions by St. Paul Police Officers and consistent approval of such by actions by their superiors.
In Monell v. Department of Social Services of New York, 436 U.S. 658, (1978), the Supreme Court interpreted 42 U.S.C.A. § 1983 such that police departments (or city governments) may be liable for the actions of an officer if a plaintiff can show that the department established or tolerated the kind of actions undertaken by the officer.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.