Sunday, January 29, 2012


"It's dangerous to be right when the government is wrong." (Voltaire)

Suing the government is the second most popular indoor sport in America, and police are often the targets of lawsuits, with over 30,000 civil actions filed against them every year, between 4-8% of them resulting in an unfavorable verdict, where the average jury award is $2 million. This isn't even counting the hundreds of cases settled thru out-of-court settlements, which probably runs in the hundreds of millions and involves about half of all cases filed. It may take up to five years to settle a police liability case.

When police fail to perform their duties, perform them negligently, or abuse their authority, the possibility of civil liability exists. Unlike criminal cases, liability cases are tried in civil court. It's common to name everyone associated with the injury or damage as the defendant (officers, supervisors, agencies, even the government entity) in order to reach the "deep pockets". Chances are the higher-ups will have the ability to pay larger awards either personally or by raising taxes.

There are two (2) ways to sue the police. One, the lawsuit may be filed in state court as a tort law claim. This is the preferred method since torts can only be settled by money awards and the standard of proof is preponderance of the evidence, a standard much lower to convict than in a criminal case. Two, the lawsuit may be filed in federal court as a violation of Title 42 of the United States Code, Section 1983. This is referred to as a civil rights claim, and is essentially a charge that someone has had their constitutional rights violated. States cannot be sued in a civil rights claim, but municipalities and sheriffs can be sued if they are (a) acting under color of state law, and (b) violating a specific Amendment right in the Constitution. The standards under federal law are custom or policy, and deliberate indifference, a rather poorly defined concept which is similar to totality of circumstances. Although federal lawsuits can result in money awards, the amount is usually less since the main purpose is to win and get the agency to change the way it operates; i.e., obtain injunctive relief.


There are three types of torts under state law, each with different levels of proof and focusing upon different elements of the injury or damage. Evidence rules, precedent, and judicial discretion play a role in determining what type of tort law will be applied.

STRICT LIABILITY -- In this case, the injury or damage is so severe and it's reasonably certain that the harm could have been foreseen that the law dispenses with the need to prove intent or mental state. The only issue is whether the officer or department should pay the money award, and since officers don't usually have any money, the department almost always pays. (Examples: reckless operation of vehicle; excessive SWAT tactics)

INTENTIONAL TORT -- In this case, the officer's intent must be proven, using a foreseeability test involving whether or not the officer knowingly engaged in behavior that was substantially certain to bring about injury. (Examples: wrongful death; assault; false arrest; false imprisonment)

NEGLIGENCE -- In this case, intent or mental state do not matter. What matters is whether some inadvertent act or failure to act created an unreasonable risk to another member of society. (Examples: speeding resulting in traffic accident; not responding to 911 call) Most states have three levels of negligence: (1) slight or mere (absence of foresight); (2) gross (reckless disregard); and (3) criminal. To be prosecuted under tort law for negligence usually requires at least level 2 since to be prosecuted for mere negligence requires considering foreseeability which would support charging the person with an intentional tort or not.

There are additional details of state tort liability associated with specific types of lawsuits, such as:

Wrongful death -- These are typically cases when the officer thinks a suspect is reaching for a weapon, shoots the suspect, and then no weapon is found on the suspect. Courts have ruled that the totality of circumstances must be looked at, especially the reason why the suspect came into contact with the officer in the first place. Merely alleging that a suspect appeared to be reaching for a weapon is no defense.

Assault & Battery -- A police assault would be if an interrogator threatens to throw a suspect out a second-floor window; a police battery is (paradoxically) defined more loosely as any offensive contact without consent; e.g., a male officer performing an illegal search of a female over her protests.

False arrest -- The unlawful restraint of a person's liberty without their consent; e.g., using the caged area of a patrol car as a holding area, several officers surrounding somebody, or ordering someone to remain at the station could all be interpreted as false arrest.

False imprisonment -- This is different from false arrest in that an officer may have had probable cause to arrest, but later violates certain pretrial rights, such as access to a judge or bondsman.

HOT PURSUITS: This high-liability area typically involves reckless or negligent operation of a motor vehicle. It's also typically a strict liability area, and here are some of the acts used by the courts to infer intent or state of mind: not using flashers & sirens; not considering alternative to chase; using old, beat-up police cars; excessive disregard of traffic control devices; not securing the chase path; not warning the public; using cutoff maneuvers & roadblocks that create the possibility for overreaction; not stopping to assist any innocent injured bystanders. The duties are threefold: To warn & protect; To secure the scene; To render assistance.


Two elements have to be present simultaneously under federal liability law. If a person loses in federal court, they still have recourse under state law.

ACTING UNDER COLOR OF LAW -- This means that the behavior of officers not related to employment are not actionable. It does not mean that off-duty officers cannot be sued. An officer moonlighting in a security job can be held liable since they are acting under color of law in performing a police function. And, it sounds like a contradiction, but police behavior that is clearly illegal and violates departmental procedure, like beating up a citizen, is regarded by the court as acting under color of law.

VIOLATION OF A CONSTITUTIONAL RIGHT -- These involve whatever the court believes to be specifically prohibited conduct regarding freedom of religion, speech, press, or assembly (1st Amendment), freedom from unreasonable search and seizure (4th Amendment), freedom from double jeopardy and self-incrimination (5th Amendment), rights to a speedy, public, impartial jury trial, and to be informed of the charges, confront and compel witnesses, and to have assistance of counsel (6th Amendment); freedom from excessive bail, fines, and cruel and unusual punishments (8th Amendment); and freedom from deprivations of life, liberty, or property without due process (14th Amendment).

The leading case in police department liability under federal law is Monell v. Dept. of Social Services (1978). Under this ruling, it must be shown that the department adopted or promulgated (however informal) a "custom" or policy that was the driving force behind the officer's violation of constitutional rights. In essence, this is the doctrine of respondeat superior, since a policymaker (or "custommaker") has to be found to declare the department liable. A "pattern" of constitutional violations and an awareness of them by high-ranking officials must be demonstrated. However, there is precedent holding departments accountable for one single act as fulfilling "pattern" requirement.

Examples of gross negligence or accumulations of mere negligence constitute deliberate indifference. This standard is usually satisfied by looking at whether or not the agency administration engaged in supervisory negligence. Virtually every decision a police administrator makes subjects them to possible liability. The following are examples of supervisory negligence:

Negligent hiring -- hiring persons unfit for police work; not conducting psychological exams; not conducting full background checks

Negligent supervision -- inadequate monitoring of employee performance; failure to reprimand when appropriate; tolerating sloppy police work; hearing rumors & not acting; being new to supervisor job

Negligent retention -- keeping employees on the job or promoting them on the basis of favoritism or friendship when they clearly should have been severely disciplined, demoted, or dismissed

Failure to train -- inadequately preparing employees to perform their duties; minimal or too easy academy training; little or no in-service training; no educational tuition reimbursement

Negligent entrustment -- inadequately preparing employees prior to entrusting them with responsibilities; a synergistic combination of failure to train and negligent supervision

Negligent assignment -- assigning known problem employees to critical or inappropriate duties; reckless drivers to patrol; racist officers to ghetto areas; sexist officers with a female partner

Failure to direct -- not giving officers clear, articulated guidance in how to perform their duties; not having policies and procedures; having officers "sign off" on same without understanding them

Failure to discipline -- not having an effective discipline process; not following progressive discipline principles

Failure to investigate -- also a liability of officers; with supervisors, it's not having an effective Internal Affairs unit, inspections or integrity checks, a difficult (for citizens) complaint process, or a difficult (for employees) grievance process

Failure to protect -- also a liability of officers and jail managers; it's not inspecting safety conditions; allowing victims or witnesses to come in contact with suspects; (protection of public is an individual liability addressed with failure to direct for supervisors or writ of mandamus)

Failure to treat -- also a liability of officers and jail manager; not providing first aid, ambulance service, or counseling (given the foreseeability of suicide)

Negligent classification -- a jail manager liability; throwing adults in with children, or dangerous inmates in with non-dangerous ones


Contributory negligence -- this is where the government shows that the plaintiff was also negligent, and contributed to their own injury or damage. No money award is granted if this defense is successful.

Comparative negligence -- this is when the court decides on a percentage split (say 60-40) in terms of who is negligent. This defense tends to mitigate, or reduce the size of the money award.

Assumption of risk -- this is when the court decides that the suspect engaged in behaviors (e.g., fleeing from police) that assumed the risk of damages or injuries, and cannot expect to sue the police to recover.

Absolute Immunity -- This is a Section 1983 lawsuit defense that is limited to participation in the judicial process; i.e., testifying in court. If a police officer commits perjury on the stand, they cannot be threatened with civil liability, only the criminal offense of perjury. The courts reason that it's difficult enough to get people to testify without the threat of civil liability.

Qualified Immunity -- This is a Section 1983 lawsuit defense covering duties of a discretionary nature, such as when a police administrator decides to increase or decrease the number of patrols for drunk drivers. A motorist hit by a drunk driver charging that the department did not have enough patrol cars out protecting her would not win her lawsuit.

Probable Cause -- This is the standard defense to false arrest charges.

Good Faith -- This covers a wide range of behaviors, even unconstitutional ones, if the officer is executing a warrant believing in good faith that the warrant was valid, but it later turns out the warrant was defective or invalid.

College Education -- When a department has a 4-year college degree standard for all its employees, this protects somewhat against various forms of supervisory negligence, such as charges relating to the failure to supervise, direct, train, or entrust, since it can reasonably be expected that college educated officers are better prepared to understand a broader range of motivation and control issues, more likely to read and understand policy manuals, temper police powers with good judgment or democratic values, and have a more professional orientation.

Americans for Effective Law Enforcement, Inc.
AELE: Case Law Library
The Liability Reporter
Police Liability Assessment Guide
Police Liability Concerning Human Rights

Carter, D. & A. Sapp (1990). Higher Education as a Policy Alternative to Reduce Police Liability. Police Liability Review 2: 1-2.
Del Carmen, R. (1991). Civil Liabilities in American Policing. Englewood Cliffs, NJ: Prentice-Hall.
Kappeler, V. (1993). Critical Issues in Police Civil Liability. Prospect Heights, IL: Waveland Press.

Last updated: 07/16/04
Syllabus for JUS 205
Instructor Home Page

No comments: