Civil Liability

1. Civil Liability Conditions and Defenses

2. What is the connection between ethics and deviance and law enforcement operations? When police officers fail to perform their assigned duties, perform them negligently, or abuse their authority, the possibility of civil liability exits.

3. Key points: • There are Real Suits, frivolous suits, nuisance suits, deep-pocket suits • Visibility and recent rise in court findings of police liability • Number of suits generally increasing and the dollar amount of pending suits increasing • Civil liability is the companion to Criminal complaint • Litigation is one of the ways for “controlling” police behavior • Most law suits involve assault, battery, false imprisonment, and malicious prosecution

4. Basic formula for any lawsuit • Existence of a legal duty owed by one party to another • An alleged breach of that duty • Injury or loss resulting from that breach

5. Parties to the Law Suit • Plaintiff: citizen • Defendant: officer, supervisor, administrator, entire departments and police academies - generally a specific person is singled out to be named in the law suit as well as others associated with the incident

6. State Suits It is within the rights of all citizens to take legal action against persons whom they feel have wronged them. (Civil tort - a civil wrong in which the action of one person causes injury to the person or property of another in violation of a legal duty imposed by law)

7. Three Categories • Intentional tort - use in police cases • Negligence tort- used in police cases • Strict liability tort - not used in police cases

8. Intentional Tort • False Arrest and False Imprisonment • Assault and Battery • Wrongful Death • Intentional Infliction of Emotional Distress

9. Assault & Battery • Assault - usually defined as the intentional causing of an apprehension of harmful or offensive conduct; it is the attempt or threat, accompanied by the ability, to inflict bodily harm on another person - committed if an officer causes another person to think he/she will be subjected to harmful or offensive contact • Battery - the intentional infliction of a harmful or offensive body contact - given this broad definition, the potential for battery exists every time an officer applies force on a suspect or arrestee) • Difference - assault is generally menacing conduct that results in a person’s fear of imminently receiving a battery, whereas battery involves unlawful, unwarranted or hostile touching, however slight - in some jurisdictions assault is attempted battery

10. Negligence Tort • Negligent Operation of Motor Vehicle • Negligent Failure to Protect • Negligent Police Training • Breach of Duty • Proximate Cause • Damage or Injury

11. Defenses for Suites • Contributory Negligence • Comparative Negligence • Assumption of Risk

12. Federal Suites Based on the premise that when police misbehave, it is often the citizen’s rights under the Constitution that have been violated - Civil Rights Act of 1871

13. 1893 Action Section 1983 of Title 42 of the U.S. Code - passed in the aftermath of the Civil War - The law originally passed Congress in 1871 and was known as the Ku Klux Klan law

14. 1893 Action Conditions • Usually filed in Federal Court • .Discovery procedures more liberal • .Attorney’s fees are recoverable by the “prevailing” plaintiff in accordance with the Attorney’s Fees Act of 1976 • .Recognizes that city, county, and state police officers take an oath to uphold and enforce the laws of their specific state, and much public confidence and trust is entrusted to them - consequently, the law prohibits the depravation of life, liberty, or property without due process of law

15. Monroe v Pape (1961) Case of brutality - crucial aspect to Section 1983 is that the infraction must have occurred while the officer was acting under the color of the law - this means that the police officer in question must have been on duty and acting within the scope of his/her employment

16. Elements of a Section 1983 Lawsuit • The defendant must be acting under color of law • There must e a violation of a constitutional or a federally protected right

17. Federal Officers • Federal officers cannot be sued under Section 1983 but can be sued under one of two complaints • Bivens action - basically a judicially created counterpart of the 1983 action suit and the Supreme Court has allowed federal officers (not the federal government) to be sued for constitutional violations that would otherwise be the subject of the 1983 suit against a state or local officer (comes from Bivens v. Six Unknown Federal Narcotics Agents (1971) • Tort against the United States under Federal Tort Claim Act -

18. Federal Tort Claim Act - Defenses • Absolute Immunity • Quasi-judicial Immunity • Qualified Immunity

19. Absolute Immunity Applies only to judges, prosecutors, legislators - except in the case of a police officer’s actions connected with the trial process - police can be tried in criminal court in the case of perjury

20. Quasi-judicial Immunity Certain officers are immune if performing judicial-type functions but not when performing other functions connected with their office - probation officer preparing a pre-sentence investigation report upon the order of a judge

21. Qualified Immunity • The immunity defense applies to an official’s discretionary (optional) acts, meaning acts that require personal deliberation and judgement • Relates to the good faith defense - a public officer is exempt from liability if he/she can demonstrate that the actions taken were reasonable and performed in good faith within the scope of employment

22. Probable Cause Only in cases of false arrest, false imprisonment, and illegal search and seizures, either under tort law or Section 1983 - means reasonable good faith belief in the legality of the action taken - expectation is lower than the Fourth Amendment definition Note: “when the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed”

23. Good Faith Used in Section 1983 and not available in all states for tort laws - means that the officer acted with honest intentions under the law (meaningfully lawful) and in the absence of fraud, deceit, collusion, or gross negligence

24. Good Faith most likely to be upheld • If the officer acted in accordance with agency rules and regulations • If the officer acted pursuant to a statute that is believed to be reasonably valid but is later declared unconstitutional • If the officer acted in accordance with orders from a superior that are believed to be reasonably valid • If the officer acted in accordance with advice from legal counsel, as long as the advice is believed to be reasonably valid

25. Can Police Sue Back? • Officer may have to hire on attorney in a tort case • Those being sued may not have the money to pay if the counter suit prevails • Less expensive and more convenient to get back at the suspect in a criminal case • Many officers feel that the harsh treatment they sometimes get from the public is part of police work and is therefore accepted without retaliation