Did Officer Tarter violate Gregory's due process right against suggestive show-ups so as to result in the officer's civil liability?

Question

Gregory was convicted of two rapes that occurred in 1992. After spending seven years in prison, he was exonerated after DNA testing proved that he was not the donor of the biological evidence. In one case Officer Tarter visited Ms. S (a victim) with a photopak that included Gregory's picture and five others, but only Gregory's had a recent date on it. Ms. S was unable to make any identification from the photopak. Thereafter, Tarter and Greer asked Gregory to come in for a line-up in the presence of Ms. S. By the time Plaintiff and his attorney arrived at the station, Tarter had taken no affirmative steps, beyond securing the presence of Ms. S, to effectuate a line-up. Line-ups take at least an hour to arrange and can take days if the suspect has unique characteristics. Tarter never informed Gregory or his lawyer, or police supervisors or the prosecutor that Ms. S had failed to pick Gregory's picture out of a photopak, or that Ms. S's description of her assailant was inconsistent with Plaintiff's physical appearance. After Gregory arrived at the station anticipating a line-up, Tarter instead him to agree to a oneon-one show-up with Ms. S. Gregory agreed and signed a preprinted "waiver" form consenting to the show-up. Ms S. identified Gregory at the one-on-one show-up, and he was arrested immediately following the identification. A civil suit against a police officer overcomes a police officer's qualified immunity against the lawsuit if the officer's actions violated "clearly established law."
What will be an ideal response?

Answer 1

Yes
First, Tarter raises several contentions: (1) there was no well established constitutional right in 1992 to be free of "show-ups"; (2) Gregory waived his right to contest the show-up, and therefore no due process violation could have occurred; (3) as a matter of law, any due process violation that did occur was a result of the prosecutor's choice to use the show-up identification at trial, and not the direct result of Tarter's use of the show-up in the first instance. (1) In a claim for qualified immunity, a court first considers (1) whether the plaintiff has asserted a violation of a known constitutional right, and (2) whether the constitutional right was so clearly established at the time in question that a reasonable official in the defendant's position would have known that he was violating the plaintiff's constitutional rights. Criminal suspects have a constitutional right to be free from identification procedures "so unnecessarily suggestive and conducive to irreparable mistaken identification" that the identification's use violates due process of law. Stovall v. Denno (1967). An impermissibly suggestive identification leads to a criminal conviction, requires a defendant's conviction to be overturned. Tarter argues that a reasonable officer would not have known that his use of the show-up was a violation of Gregory's constitutional rights, because show-ups are not per se unconstitutional. Yet the Supreme Court has held that police officers must evaluate the totality of the circumstances and reach a reasoned conclusion as to whether an identification procedure is impermissibly suggestive or not. See Neil v. Biggers (1972). The Supreme Court has never said that law enforcement may do away with this consideration merely because a criminal suspect consents to come in for an identification procedure. On the contrary, the cases require an assessment of the circumstances before the decision to undertake a show-up. This Court has never held that a police officer is free to ignore the constitutional restraints on police action merely because the constitution does not forbid such action in all circumstances. Tarter may as well argue that a police officer is free to make warrantless searches and seizures without fear of constitutional liability because the Constitution does not prohibit such searches in all cases. (2) The consent argument, that n Gregory's has no legal right to bring a due process claim because he signed the preprinted "waiver" form, is in error. Gregory does not have a right to a line-up versus a show-up. He has a due process right which includes the right to be free from unduly suggestive and unreliable identification procedures. By consenting to a show-up in lieu of a line-up he was not waiving this right, but merely agreeing to be put in front of a witness before his indictment, when he had a right not to appear for an identification procedure at all. As a result of circumstances unknown to Gregory at the time, the show-up was unduly suggestive. He did not "waive" any improper suggestiveness associated with the show-up by agreeing to appear. The preprinted waiver form does not include any language about a right to due process or a fair trial. Criminal suspects may agree, for example, to appear for a line-up prior to any indictment or even arrest. Such agreement does not mean, however, that the suspects lose their right to contest any suggestiveness in the line-up not caused by them. (3) Tarter argues Gregory's injury resulted from the prosecutor's use of the impermissibly suggestive identification at trial, and not from Tarter's procurement of the identification itself. An unduly suggestive identification does not, in and of itself, violate constitutional rights and the prosecution's use of the identification at trial is a necessary intervening act for injury to occur. But the prosecutor's discretion to control the state's case at trial is not such an intervening act to excuse Tarter from the "natural consequences" of his actions and any tort liability. In one case the Supreme Court held that the issuance of an arrest warrant will not shield a police officer who applied for the warrant from liability for false arrest if a reasonably well-trained officer in his position would have known that his affidavit failed to establish probable cause. The Supreme Court's reasoning is directly applicable here. The prosecutor's decision to use the identification does not shield Tarter from liability if he reasonably should have known that use of the identification would lead to a violation of Gregory's right to a fair trial. Tarter is denied qualified immunity for Gregory's claim of suggestive identification.