1. Chapter 13 – Legal Liabilities of Police Misconduct

2. 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.

3. 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

4. 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

5. 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.

6. 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

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

8. Intentional Torts • Examples • False Arrest • Assault and Battery • Excessive Use of Force

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

10. 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

11. 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

12. 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

13. 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.

14. 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

15. §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.

16. 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

17. 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

18. 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

19. 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

20. 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.

21. 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.

22. 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.

23. Supervisors as Defendants • 7) Negligent entrustment • Entrusting a person into a position of responsibility who clearly should not have held such a position.

24. 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.

25. 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