DMN reports on a very quickly filed lawsuit following yet another DPD shooting. I wonder if the new 72 hour rule for DPD officers will play a role in this case?
I get contacted fairly often regarding allegations of police misconduct and people want to know if they can sue the cops if they are abused or treated unfairly. Let’s go over the petition in this case, titled Kelvion Walker vs. Amy Wilburn to understand the basics of a federal lawsuit against law enforcement.
Who is suing who in this case?
Kelvion is the guy who got shot. Amy Wilburn is the shootee.
What is the cause of action? What is he suing her for doing, besides shooting her obviously?
It’s not enough to say you got shot by law enforcement. Cops shoot people all the time and no one gets sued. Instead, you need to find a constitutional violation. In this case the Plaintiff (guy who got shot by DPD) is claiming that his constitutional rights were violated (4th, 5th, and 14th Amendments respectively) and he is filing suit un USC 1983 and 1988. Lawyers often call these suits “1983” cases.
What does USC 1983 say?
It was enacted as part of the 1871 Civil Rights act in order to let people sue the KKK and Southern governments that were in league with such entities, but it’s not limited to Klan lawsuits.
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,
That means you can sue a local government actor who violates your constitutional rights.
So how is getting shot a violation of the Constitution?
Good question. Shooting a suspect is considered a “seizure” for 4th amendment purposes. In this case, Kelvion is claiming that his rights were violated because the shooting was an unlawful search and seizure , an unlawful use of force, and that it violated his right to receive medical care while in custody (the Dallas jail faces suits for this often).