Officer Doe

The plaintiff in Fogarty v. Gallegos, Nos. 06-2283 & 2279 was shot with a “less-than-lethal” projectile and then arrested while participating in an anti-war protest.  Unfortunately for him, the officers who arrested him wore “face-concealing gas masks” and uniforms that “did not have any identifying marks such as the officers’ names or badge numbers.”  Moreover no arrest report was ever completed regarding Fogarty’s arrest.  As a result, despite, a videotape of the arrest, twenty-seven volumes of discovery, and thirty depositions, “no witness could positively identify the arresting officers” or the officer who shot Fogarty. (This apparently “perplexed” the district court but I don’t find it at all surprising).  A footnote observes that “[a]s a result of an investigation in . . . response to the . . . protest, the department now requires identifying information on E[mergency] R[esponse] T[eam] uniforms.”

Fogarty brought claims for unlawful arrest and excessive use of force under § 1983.  The core of the opinion is naturally directed at these claims, particularly issues of supervisory liability and failure to intervene.  However, I am still hung up on the facts.  The situation reminds me a little of Summers v. Tice, in which the plaintiff was negligently shot by one or both of his hunting companions.  In Summers, both shooters are potentially liable.  In the present case, however, the fact that the arresting officers’ identity was deliberately concealed appears to have allowed them to escape liability (and leave their supervisors and fellow officers on the hook).