Chapter 13 legal liabilities of police misconduct
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Chapter 13 – Legal Liabilities of Police Misconduct Nature and Extent of Liability Police officials can face either criminal or civil liability during the course of their duties. Officers usually face civil liability far more frequently than criminal liability. Nature and Extent of Liability

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Nature and Extent of Liability

  • Police officials can face either criminal or civil liability during the course of their duties.

  • Officers usually face civil liability far more frequently than criminal liability.


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Nature and Extent of Liability

  • Civil liabilities lead to monetary award for damages

  • Criminal liabilities leads to imprisonment, fine, etc

  • Can face both criminal and civil liability for the same action


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Nature and Extent of Liability

  • Major police departments average appx. $10 million per year in settlements.

  • Criminal liability is imposed primarily under state law.

  • Violations of a person’s civil rights can be brought under state or federal law


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Civil Liability

  • 2 ways in which an officer may be held civilly liable

  • State tort law— redresses injuries between people.

  • Federal Law— imposes civil liability on government officials for violating people’s rights.


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State Tort Law

  • Tort – civil wrong in which the defendant’s actions cause injury to a person or to property

  • Tort law is constantly changing – frequently based on judicial decisions not legislature

  • Two types of torts

    • Intentional tort

    • Negligence tort


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Intentional Torts

  • Based on willful and knowing misconduct -intentionally performed the acts knowing that injury would likely occur


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Intentional Torts

  • Examples

  • False Arrest

  • Assault and Battery

  • Excessive Use of Force


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Negligence Torts

  • Reckless or careless failure to exercise the degree of care that the law deems appropriate in a particular situation


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Negligence Torts

  • General rule – no liability for failing to protect a member of the public

  • Public duty doctrine – government functions are owed to the general public, not to specific individuals

  • Example – if fail to prevent crime, not liable to the individual


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Negligence Torts

  • Exception to the public duty doctrine

    • Special relationship

  • Examples of special relationship

  • Court/Protective order

  • When police arrest an individual and something happens to them in custody

  • Witnesses when threatened


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Negligence Torts

  • Under certain circumstances an officer can be held liable for

  • 1) Negligent use of motor vehicles

  • 2) Failure to arrest intoxicated subjects and drivers


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Civil Liability under Federal Law

  • Referred to as civil rights or Section 1983 cases

  • Law is in 42 US Code Section 1983

  • Any governmental official who deprives someone of their rights under the Constitution and/or federal laws is liable under §1983.


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Civil Liability under Federal Law

  • This is the most frequently used vehicle to sue police officials because:

    • Discovery procedures are more liberal.

    • Can recover attorney’s fees.

  • Case may be filed under state tort law and Section 1983


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§1983 Lawsuits

  • Requirements of a §1983 lawsuit:

  • Defendant must be acting under the color of law.

    • Includes acts that exceed lawful authority.

  • Must be violation of a right given by the U.S. Constitution or by federal law.

    • 14th Amendment serves as the catch-all for §1983 lawsuits.


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Defenses in Civil Liability Cases

  • 1) Good faith defense – only held liable if violated a clearly established statutory or constitutional right of which a reasonable person would have known

  • Includes acts which the officer reasonably believes are lawful

  • Must keep updated on basic rights of people


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Defenses in Civil Liability Cases

  • 2) Acting within the scope of employment defense

  • Officer is saying that the act was authorized by agency rules and regulations – it is the agency’s fault


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Defenses in Civil Liability Cases

  • Defense will probably succeed in the following instances:

  • A) officer acted in accordance with agency rules

  • B) officer acted pursuant to statute later declared unconstitutional

  • C) officer acts in accordance with orders from superior believed to be valid


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Defenses in Civil Liability Cases

  • 3) Probable Cause defense

  • In this instance, p/c means a reasonable good faith belief in the legality of the action taken

  • Lower than the 4th amendment concept of p/c


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Supervisors as Defendants

  • Seven theories of supervisor liability:

  • 1) Negligent failure to train

    • Has not been trained properly by the supervisor or agency and thus lacks the skills, knowledge or competence required for the job.

  • 2) Negligent hiring

    • A person or persons were hired without adequate screening.


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    Supervisors as Defendants

    • 3) Negligent failure to supervise

      • Tolerating a pattern of violating rights or allowing persuasive deprivation of people’s rights.

  • 4) Negligent assignment

    • Failure to suspend or transfer officer to a nonsensitive assignment after numerous disciplinary reports.


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    Supervisors as Defendants

    • 5) Negligent failure to direct

      • Failure to provide adequate direction and feedback in crucial situations or on a continual basis.

  • 6) Negligent failure to discipline

    • Failure to take appropriate disciplinary or corrective actions towards officers or towards a pattern within the agency.


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    Supervisors as Defendants

    • 7) Negligent entrustment

      • Entrusting a person into a position of responsibility who clearly should not have held such a position.


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    Supervisors as Defendants

    • The test in determining all of the seven theories is “deliberate indifference.”

    • While this is clearly difficult to prove, it is not impossible and it does not prevent a lawsuit from being filed in the first place.


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    Agencies as Defendants

    • Municipality will be held liable if the unconstitutional action taken by the employee is caused by a municipal policy or custom, written or unwritten.

    • Custom—persistent widespread practice of employees, that although not a policy, it is common and well settled.

    • Deep Pockets


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