United States Marshal
Rooster Cogburn
ROADMAP
 TORT LAW
 LIABILITY FROM VEHICLE OPERATIONS
 SOVEREIGN IMMUNITY
 LIABILITY FROM HIGH-SPEED PURSUITS
 USE OF FORCE ISSUES
 CONSEQUENCES
FOR WHAT REASONS
ARE OFFICERS, AND
THEIR EMPLOYERS,
BEING SUED?
SPECIFIC INSTANCES WHICH COULD RESULT IN
CIVIL LIABILITY TO AN OFFICER OR THE
DEPARTMENT OR THE COMMUNITY
NEGLIGENT HIRING, TRAINING, RETENTION
FALSE ARREST
IMPROPER SEARCH AND SEIZURE
INJURY TO INNOCENT BYSTANDERS
FAILURE TO PREVENT A CRIMINAL ACT
FROM OCCURING
FAILURE TO PROTECT CONFINED INMATES
TRAFFIC CHASES/PURSUITS
EXCESSIVE USE OF FORCE
BIAS-BASED ACTIONS
SOVEREIGN IMMUNITY
A type of immunity that in common law
jurisdictions traces its origins from early English
law
(hence the saying, the king can do no wrong)
Generally speaking, it is the doctrine
that the government cannot commit a
legal wrong and is immune from
civil suit or criminal prosecution
SOURCE: Wikipedia, the free encyclopedia
ORC 2744.03(A)(6)
… the employee is immune from liability
unless one of the following applies:
(a) … acts or omissions were manifestly
outside the scope of the employee's
employment or official responsibilities;
(b) … acts or omissions were with malicious
purpose, in bad faith, or in a wanton or
reckless manner;
(c) Civil liability is expressly imposed upon
the employee by a section of the Revised
Code
Elkins v. Summit County,
2010 6th Circuit
• On June 6, 1998, Johnson was raped and
murdered in her home. Her six-year-old
granddaughter was also assaulted and
raped. Based on her statement that the
rapist looked like her uncle, Elkins, the
Barberton police arrested Elkins. A friend
of Judith's testified that she had expressed
fear of Elkins and had called her son-inlaw names.
• Elkins was arrested.
Elkins v. Summit County,
2010 6th Circuit
• On January 5, 1999, while the Elkins
investigation was ongoing, Mann was
arrested by the Barberton police for two
“strong-arm” robberies. During the course
of the arrest, Mann, who was mad and
drunk, asked officer Antenucci, “Why don't
you charge me with the Judy Johnson
murder?”
• The officer forwarded a memo of
the statement to detectives.
It was not disclosed.
Elkins v. Summit County,
2010 6th Circuit
• At trial, Brooke identified Elkins as the
perpetrator. Elkins wife testified that Elkins
had been at home with her, 40 miles
away, but in separate beds. She was seen
as covering for her husband.
• Pubic hair and head hairs from Johnson's
anus and Brooke's nightgown and other
DNA was not tested since the police had a
witness.
• Elkins was convicted! He received life
without parole. No shock, he appealed.
Elkins v. Summit County,
2010 6th Circuit
• Was it wrong for the detectives to withhold
the statement made by Mann from the
defense? Were their actions malicious?
• What if they could prove it had no merit?
• In 2002, Brooke recanted her testimony.
Should the memo matter now?
• DNA finally tested, not Elkins – no release.
Should the memo matter now?
• Were the LEOs malicious?
Elkins v. Summit County,
2010 6th Circuit
• An officer must disclose to the
prosecutor evidence whose materially
exculpatory value should have been
"apparent" to him at the time of his
investigation. Elkins had a
constitutional right to have the
favorable evidence disclosed to
the prosecution and the court.
Elkins v. Summit County,
2010 6th Circuit
• Mann had been arrested and convicted of
molesting his three young daughters
• He went to prison with Elkins
• Elkins did the job for the cops!
• Attorney General’s help
WHAT CAN THE AGENCY
DO TO MINIMIZE
CIVIL LIABILITY?
METHODS FOR AVOIDING OR
MINIMIZING CIVIL LIABILITY
PROFESSIONALISM
COMMON SENSE
KNOWLEDGE OF AND ADHERENCE TO THE
LAW
QUALITY RECRUITMENT
QUALITY BASIC TRAINING AND CONTINUED
TRAINING
PERFORMANCE EVALUATIONS
OPERATIONAL POLICIES AND PROCEDURES
LIABILITY INSURANCE
State v. Baughman,
1/18/2011
12th Appellate District
• Officer Martin of the Springboro PD
received a 911 dispatch regarding
a possibly intoxicated driver
heading toward Springboro. A man
who identified himself as "John
Simpson" called 911 and reported
seeing a small, red car driving
erratically in the vicinity of
State Route 741.
State v. Baughman, 2011
12th Appellate District
• The informant provided the license
plate number of the vehicle and
suggested that the driver may be
diabetic or intoxicated.
• Officer Martin then initiated a traffic
stop without having observed any
traffic violations. The officer stopped
the vehicle solely on the basis
of "John Simpson's" tip.
State v. Baughman, 2011
12th Appellate District
• Shawna was placed under arrest
• Unbeknownst to Officer Martin at the
time of the arrest, the tipster who
identified himself as "John Simpson"
was actually Shawna's husband,
Frank Baughman.
• He did not want Shawna to know he
was the tipster due to their
impending divorce & custody issues.
State v. Baughman, 2011
• When Shawna retrieved the children,
Frank claimed he saw her "stumble a
little bit" as she opened her car door. He
also indicated that he "thought he
smelled something" about Shawna's
person. At the suppression, he admitted
that he phoned 911 partly because he
was angry following the custody
exchange. He did not actually observe
her driving erratically or crossing the
double line as he told the 911 dispatcher.
• Is the stop & evidence admissable???
State v. Baughman,
2011
• The propriety of applying the
exclusionary rule turns on the
culpability of the police and the
potential for exclusion to deter
wrongful police conduct.
• The exclusionary rule was not
designed to exclude evidence of
misconduct by an actor
outside of law enforcement.
TORT
A PRIVATE OR CIVIL WRONG
OR INJURY
A DUTY OWED ACCORDING TO A
STANDARD OF CARE, WITH FAILURE
TO MEET STANDARD THEREBY
CAUSING A LOSS, DAMAGE OR
INJURY TO ANOTHER
CRIME
AN OFFENSE COMMITTED AGAINST
THE STATE
TORT LAW
THERE ARE THREE CATEGORIES OF TORT LAW:
NEGLIGENT
INTENTIONAL
CONSTITUTIONAL
TORT LAW
NEGLIGENT
Failure to conduct affairs or perform
certain acts in such a manner that others
are subjected to unreasonable risk of
harm
It is a lack of due care in using police
equipment or performing police duties
(i.e. Improper high speed pursuits, use of
force, use of roadblocks, firearms, etc.)
TORT LAW
NEGLIGENT
A plaintiff must prove these elements:
1. Existence of a duty
2. Breach of that duty
3. Proximate (foreseeable)
cause leading to
4. Loss or damage
TORT LAW
INTENTIONAL
Voluntarily performing an act which,
to a substantial certainty, will injure another
Includes such actions as assault, false arrest,
malicious prosecution, defamation, invasion of
privacy, intentional infliction of emotional
distress
Must show actual
harm
TORT LAW
CONSTITUTIONAL
A failure to recognize and uphold the
rights, privileges, and immunities
provided by the U.S. Constitution,
thereby depriving an individual of his/her
rights, privileges, and/or immunities
Examples: 42 U.S.C. 1981 - racial discrimination
42 U.S.C. 1983 - while acting under color of law, deprive a
person of a constitutionally protected right
TORT LAW
CONSTITUTIONAL
A plaintiff must prove these elements:
1. Public officer or official
2. Acting under color of law leading to
3. Violation of a constitutional right
4. Proximate cause of harm/damage
Houston Police 2009
TORT REMEDY
THERE ARE TWO CATEGORIES OF TORT
REMEDY:
COMPENSATORY
PUNITIVE
TORT REMEDY
THERE ARE TWO CATEGORIES OF TORT
REMEDY:
COMPENSATORY
GENERAL
pain and suffering
SPECIFIC
out-of-pocket expenses
ATTORNEY FEES
available for cases involving the violation of civil
rights (42 U.S.C. 1988)
TORT REMEDY
THERE ARE TWO CATEGORIES OF TORT
REMEDY:
PUNITIVE
(or Exemplary)
Punishment; Paid from the defendant’s own pocket,
not from insurance. Available for intentional torts.
ELEMENTS OF A PERSONAL INJURY TORT
1. Did the officer owe a duty to the person
injured?
Failure to arrest
Public duty vs. Special duty
ELEMENTS OF A PERSONAL INJURY TORT
2. Did the officer violate the standard of
care?
The actions are those of a reasonable and
prudent police officer
The act must not be willful or wanton or
done with a reckless disregard for the
safety of others
ELEMENTS OF A PERSONAL INJURY TORT
3. Did the officer’s violation of the
standard of care cause the plaintiff’s
injury?
Proximate, causal relationship between the
officer’s actions and the injury sustained. It is a
causal relation between two or more events.
“Proximate cause” is defined as “that
which, in a natural and continuous sequence,
unbroken by any efficient intervening cause,
produces injury, and without which the result
would not have occurred”
Move Bombing
ELEMENTS OF A PERSONAL INJURY TORT
Did the officer owe a duty to the
person injured?
U.S. v. Lanham, 2010
U.S. v. Lanham, 2010
6th Circuit
• Lanham and Freeman worked as
jailers in Grant County, KY. Along
with their supervisor they decided
to “scare” an individual, who had
been arrested for a traffic violation,
by placing him in a general
population jail cell.
• Lanham and his supervisor
mocked the victim about his slight
appearance, and he was present
U.S. v. Lanham,
2010 6th Circuit
when his supervisor said that the
victim would make a "good
girlfriend" for the other inmates.
• When the supervisor stated that
they needed to teach the
victim a lesson, Lanham
quickly volunteered that he
knew a prisoner in Cell 101.
U.S. v. Lanham, 2010
6th Circuit
• Lanham talked to Inmate Wright,
within earshot of other inmates,
and explained that the guards
would be bringing a new prisoner
down and that they wanted the
prisoners to "fuck with" him.
• The inmates cheered at this news
when Lanham was present, and he
knew of that particular cell-block’s
reputation for violence.
U.S. v. Lanham, 2010
6th Circuit
• Lanham stated that the victim
should have been in a detox cell,
not in the general population, and
he admitted that he had asked
Inmate Wright to teach the victim
a lesson. Deputy Freeman also
failed to protect or assist the
victim after learning of the plan.
• Should the deputies be
personally liable for any harm???
U.S. v. Lanham, 2010
6th Circuit
• The victim was beaten and sexually
assaulted by other inmates. Are
the deputies liable???
• The court held that there was
sufficient evidence to support the
defendant’s convictions for
committing civil rights abuses in
violation of 18 U.S.C. §§
241 and 242.
Arrested & liable!!!
ELEMENTS OF A PERSONAL INJURY TORT
Did the officer owe a duty to the
person injured?
Sawicki v. Village of Ottawa Hills
(1988)
Terrace View Apartments
Sawicki v. Village of Ottawa Hills
(1988)
• "courts have used the public-duty rule to
shield public entities from the "severe
depletion of those resources" that could
result from imposing liability for "every
oversight or omission" by a public
official”
• "insufficient police resources to meet
every need" and that "police
departments must be able to prioritize
and create responses without the benefit
of hindsight."
LIABILITY FROM VEHICLE
OPERATION
EMERGENCY CALL:
“A call to duty, including, but not limited
to, communications from citizens,
police dispatchers, and personal
observations by peace officers of
inherently dangerous situations that
demand an immediate response on the
part of a peace officer” ORC §2744.01 (A)
LIABILITY FROM VEHICLE OPERATION
Did the call arise from such a
dangerous situation that it would
excuse the officer from being liable
for his negligent action or conduct
that resulted in the injury or loss?
LIABILITY FROM VEHICLE
OPERATION
June 13, 2009
SOVEREIGN IMMUNITY
THE STANDARD UNDER WHICH AN
OFFICER WHO IS RESPONDING TO
AN EMERGENCY CALL
IS GOVERNED
LIABILITY FOR HIGH SPEED PURSUIT
COMPARISON
EMERGENCY
CALL
VEHICULAR
PURSUIT
1. Destination
known
1. Destination
unknown
2. Route of travel
known
2. Route of travel
unknown
3. Speed depends
on police choice
3. Speed depends on
pursued vehicle
FACTORS TO CONSIDER IN
PURSUIT DRIVING
TYPE OF VIOLATION OR CRIME
AVAILABILITY OF ALTERNATE MEANS OF
APPREHENSION
WEATHER, ROAD CONDITIONS, VISIBILITY
CONDITION OF THE OFFICER’S VEHICLE
DANGER TO OTHER MOTORISTS, PEDESTRIANS,
PROPERTY, ETC.
AVAILABILITY OF ASSISTANCE
PROBABILITY OF SUCCESSFUL APPREHENSION
AREA IN WHICH PURSUIT TAKES PLACE
LIABILITY FOR HIGH SPEED PURSUIT
Use of ROADBLOCKS to terminate pursuits
WHEN?
LIABILITY FOR HIGH SPEED
PURSUIT
Brower v. County of Inyo (1989)
489
U.S. 593
Argued January 11, 1989
Decided March 21, 1989
Addressed when the use of roadblocks to
terminate a pursuit could constitute a civil rights
violation for excessive force
Occurred October 23, 1984
LIABILITY FOR HIGH SPEED
PURSUIT
Brower v. County of Inyo (1989)
A seizure alone is not enough for 1983
liability. It must also be unreasonable!
LIABILITY FOR HIGH SPEED PURSUIT
Brower v. County of Inyo (1989)
In this case, the roadblock was not just a
significant show of authority to induce a
voluntary stop
It was designed to produce a stop by
physical impact if the driver did not
voluntarily comply
USE OF FORCE
doesn’t need to be difficult!
USE OF FORCE ISSUES
WHAT CONSTITUTES A
“USE OF FORCE”?
Force includes the
Threat of Force
USE OF FORCE ISSUES
UNDER WHAT
CONSTITUTIONAL
AMENDMENT
WILL ALL ARRESTS
BE JUDGED?
USE OF FORCE ISSUES
THE PRINCIPLE BY WHICH A USE
OF DEADLY FORCE CASE WILL BE
JUDGED IS THE
REASONABLENESS
REQUIREMENT OF THE 4TH
AMENDMENT
USE OF FORCE ISSUES
Tennessee v. Garner (1985)
471 U.S. 1
Argued October 30, 1984
Decided March 27, 1985
Abolished the “Fleeing Felon Rule” as
applied to the Fourth Amendment
regarding the use of lethal force
Occurred October 3, 1974
USE OF FORCE ISSUES
Tennessee v. Garner (1985)
Decided that the correct constitutional
standard to apply in the use of lethal
(deadly) force to affect the lawful
seizure of any person is the
“objectively reasonable” test
USE OF FORCE ISSUES
Tennessee v. Garner (1985)
The use of deadly force is objectively
reasonable when:
A law enforcement officer has reason to
believe the response is objectively
reasonable to protect themselves or
others from the imminent
threat of death or serious
physical harm
USE OF FORCE ISSUES
Tennessee v. Garner (1985)
The use of deadly force is objectively reasonable
when:
A law enforcement officer is
attempting to prevent the escape of
a suspect when there is probable
cause to believe that the suspect
poses a threat of serious physical
harm to others
USE OF FORCE ISSUES
Tennessee v. Garner (1985)
Reasonableness depends not only on when
the seizure is made, but also on how it is
carried out
The use of deadly force to prevent the
escape of ALL felony suspects
is constitutionally unreasonable
USE OF FORCE ISSUES
Tennessee v. Garner (1985)
BOTTOM LINE:
An officer may not seize an unarmed,
non-dangerous suspect by shooting
him dead
USE OF FORCE ISSUES
TWO SITUATIONS IN WHICH DEADLY FORCE MAY BE
USED BY LAW ENFORCEMENT OFFICERS ARE:
1. The suspect poses a threat of serious physical
harm to the officer or others
2. The suspect threatens the officer with a
weapon or there is probable cause to believe the
suspect has committed a crime involving the
infliction or threatened infliction of
serious physical harm
USE OF FORCE ISSUES
Plakas v. Drinski (1994)
19 F.3d 1143 (7th Cir.)
Argued November 1, 1993
Decided March 21, 1994
Addressed whether an officer must use each
consecutive level of control prior to deployment of
lethal force
Addressed whether a political subdivision has the
constitutional duty to provide various levels of
control equipment to officers
Occurred February 2, 1991
USE OF FORCE ISSUES
Plakas v. Drinski (1994)
Points for Discussion
1. Do police have to use alternatives to avoid
creating a deadly force situation?
2. When deadly force is necessary, are officers
required to employ non-deadly alternatives
first?
3. Are departments required to supply officers
with state-of-the-art equipment?
USE OF FORCE ISSUES
Plakas v. Drinski (1994)
Points for Discussion
4.
Are departments required to train officers in
equipment “beyond the acceptable training
programs” mandated?
5. Are police required to simply walk away from
potentially deadly situations?
6. Do police have to maintain
cover and distance?
Plakas v. Drinski (1994)
USE OF FORCE ISSUES
Plakas v. Drinski (1994)
There is no precedent in this Circuit (or
any other) which says that the
Constitution requires law enforcement
officers to use all feasible alternatives to
avoid a situation where deadly force can
justifiably be used. There are, however,
cases which support the assertion that,
where deadly force is otherwise justified
under the Constitution, there is no
constitutional duty to use non-deadly
alternatives first.
USE OF FORCE ISSUES
Plakas v. Drinski (1994)
The 4th Amendment does not require officers
to use the least intrusive or even less intrusive
alternatives in search and seizure cases. The
only test is whether what the police officers
actually did was reasonable. Illinois v.
Lafayette, (1983); US v. Martinez-Fuerte,
(1976).
We do not believe the 4th Amendment requires
the use of the least or even a less deadly
alternative so long as the use of deadly force is
reasonable under Garner v. Tennessee and
Graham v. Connor
Graham v. Connor
(1989)
USE OF FORCE ISSUES
Graham v. Connor (1989)
490 U.S. 386
Argued February 21, 1989
Decided May 15, 1989
Established the “OBJECTIVELY
REASONABLE” test to law
enforcement actions and use of
force
Occurred November 10, 1984
USE OF FORCE ISSUES
Graham v. Connor (1989)
“Reasonableness” of the use of force
applied must be judged from the
perspective of the REASONABLE OFFICER
Whether the officers’ actions are
“objectively reasonable” in light of the
facts and circumstances confronting them,
without regard to their underlying intent or
motivation
USE OF FORCE ISSUES
Graham v. Connor (1989)
Prior standard of judgment
concerning the actions of law
enforcement was what
would“shock the system”
of a normal person
USE OF FORCE ISSUES
Graham v. Connor (1989)
Law enforcement actions, ie. Use of Force,
must be “objectively reasonable”
when these 4 factors are considered:
1. The severity of the crime in question
2. The apparent threat posed by the suspect
3. Whether the suspect was trying to resist or
flee
4. Actions judged from the perspective of a
REASONABLE officer with a tense, rapidlyevolving situation
Utah Strike Force
USE OF FORCE ISSUES
Scott v. Harris (2007)
Argued February 26, 2007
Decided April 30, 2007
Occurred March 18, 2001
USE OF FORCE ISSUES
Scott v. Harris (2007)
 Couldn't the innocent public equally
have been protected, and the tragic
accident entirely avoided, if the police
had simply ceased their pursuit?
 What difference was this case from
Garner when an officer shot a fleeing
burglar in the back of his head?
USE OF FORCE ISSUES
Scott v. Harris (2007) 05-1631
A police officer's attempt to terminate a
dangerous high-speed car chase that
threatens the lives of innocent bystanders
does not violate the Fourth Amendment,
even when it places the fleeing motorist
at risk of serious injury or death.
“REASONABLENESS”, IN USE OF LESS THAN
LETHAL FORCE, IS DETERMINED BY LOOKING AT
FOUR FACTORS:
1. From the perspective of a reasonable
officer;
2. Not with 20/20 hindsight;
3. Based on an objective standard;
4. On whether the officer acted properly
under the established laws at
the time the incident arose
JUSTIFYING A TACTIC
USE OF TRAINED TECHNIQUE
Taught during basic training or later in
advanced training, as an acceptable police
tactic
DYNAMIC ATTEMPT at a TRAINED TECHNIQUE
Attempting a trained technique and the
suspect’s actions direct the technique away
from the original target (asp hit to head)
EMERGENCY CIRCUMSTANCE
Not a trained technique, but justified under the
circumstances, ie. Groin rips, Eye gouges.
Immediate personal safety issue that is
life-threatening. “Do or die situation!”
A FAILURE TO TRAIN CASE MAY BE A
BASIS FOR LIABILITY IF:
1. The training is in fact inadequate;
2. The city is deliberately indifferent to the
rights of the person with whom the
officers have contact;
3. The lack of training was the
proximate cause of the
plaintiff’s injuries
FAILURE TO TRAIN
City of Canton v. Harris (1989)
489 U.S. 378
Argued November 8, 1988
Decided February 28, 1989
A political subdivision may be
held liable for failing to provide
adequate training, if conduct
is grossly negligent and
deprives a constitutional right
VICARIOUS LIABILITY
A form of strict, secondary liability that arises
under the common law doctrine of agency –
respondeat superior –
responsibility of the superior for the acts of
their subordinate
In a broader sense, the responsibility of
any third party that had the
"right, ability or duty to control"
the activities of a violator
SOURCE: Wikipedia, the free encyclopedia
FACTORS WHICH COULD CREATE
VICARIOUS LIABILITY FOR A SUPERVISOR:
1. Supervisor participated in the activity
with the officer(s);
2. Directed the activity of the officer(s);
3. Ratified the behavior of the officer(s);
4. Failed to act against the activity
CONSEQUENCES
1. Civilly in state court;
2. Criminally in state court;
3. Civilly in federal court for federal
civil rights violations
(42 U.S.C. §1983);
4. Criminally in federal court for federal
criminal civil rights violations (42 U.S.C.
§241, 242);
5. Departmental discipline / IA investigations;
6. Family / personal issues
Smith v. Freland,
6th Circuit 1992
• Stop sign violation led to wild
pursuit with speeds of 90mph
• Several times the driver tried to
strike the police vehicle
• Officer then fell in behind violator
• Notified dispatch of the assault
• Chased into neighboring
Sharonville into a culdesac
Smith v. Freland,
6th Circuit 1992
• The cars came nose to nose
• Officer exited to make the arrest
• Smith backed up his car, then
sped forward and crashed into
Officer Schulcz's car. He backed up
again and zoomed around the
police car, smashing into the fence
and gate as he did
so.
Smith v. Freland,
6th Circuit 1992
• As he passed by the officer (not at
him) would lethal force be justified?
• As Smith's car drove past, Officer
fired one shot at it. The bullet
entered the passenger side of the
car, pierced the passenger seat, then
struck Mr. Smith in his right
side, killing him.
Smith v. Freland,
6th Circuit 1992
• Mr. Smith had proven he would do
almost anything to avoid capture;
Officer Schulcz could certainly assume
he would not stop at threatening
others.
• The fact the Officer violated
Springdale's policies regarding police
use of force does not require a different
result. City policies do not
determine constitutional law.
Smith v. Freland,
6th Circuit 1992
• “We must avoid substituting our personal
notions of proper police procedure for the
instantaneous decision of the officer at the
scene. We must never allow the
theoretical, sanitized world of our
imagination to replace the dangerous and
complex world that policemen face every
day. What constitutes reasonable action
may seem quite different to someone
facing a possible assailant than to
someone analyzing the question at
leisure.”
Scott v. Clay County, Tenn
(2000)
• Deputies chase car after reckless
driving through intersection up to
100mph at times
• Driver loses control and crashes
• Deputy approaches on foot and car
backs toward him hitting cruiser
• Nearly strikes another officer and
heads back onto roadway
• Okay to use force? Type?
Scott v. Clay County, Tenn
(2000)
• Deputy testified he felt the driver
posed a grave immediate menace
to the lives and limbs of his
approaching colleagues as well as
innocent highway travelers.
• Fired 5 times at driver and 4 times
at tires causing car to stop.
• Was the force legal?
• Passenger was hit twice!
Scott v. Clay County, Tenn
(2000)
• One bullet lodged inside her skull
and a second gunshot imbedded
within her right shoulder
• Patricia has sought $10 million in
compensatory, and $5 million in
punitive damages
• Should the deputies receive
qualified immunity? Was
their force reasonable?
Scott v. Clay County, Tenn
(2000)
Pierce's faulted actions were objectively
reasonable. He permissibly discharged his
duty to restore and maintain lawful order
through the most effective
instrumentality readily available, namely
gunfire. Pierce justifiably fired at the
fleeing vehicle in order to seize its
occupant(s); his actions therefore could
not violate the rights of any unknown
passenger who may have been
injured by his actions. Thus, Pierce
is entitled to qualified immunity
Johnson v. City of Memphis,
2010 6th Circuit
• Police received a 911 hang-up call,
an unanswered return call, and then
found an open door with no
response from inside the residence
after notifying themselves as police
officers. They entered with guns
drawn. Officer Rice told Officer
Adams he saw someone moving
down the corridor ahead of them.
Johnson v. City of Memphis,
2010 6th Circuit
• The officers entered to make sure
that no one was hurt or in need of
assistance. As they rounded the
corner near the stairs, Johnson
appeared. Officer Rice asked why he
did not respond to the officers' calls.
He did not answer, but
instead jumped on Rice
and a fight ensued.
Johnson v. City of Memphis,
2010 6th Circuit
• Rice pushed Johnson back into a
wall, but Johnson lunged forward and
grabbed Rice's gun hand. Rice yelled
to Adams that Johnson was going for
his gun. Adams shouted repeatedly
at Johnson to get down, then fired
twice at Johnson. After
Adams fired, Johnson threw
Rice into a wall and charged
Adams.
Johnson v. City of Memphis,
2010 6th Circuit
• Adams retreated, yelled at Johnson
to get down, and continued to fire,
but Johnson reached him and hit him
with enough force to throw Adams
against a wall and knock him out
briefly. When Adams came to his
senses, Johnson was
dead at his feet.
Johnson v. City of Memphis,
2010 6th Circuit
• The officers later learned that Johnson
was not ordinarily dangerous, but was
bipolar and off his meds. Wife had
dialed 911 and then hung up in order
to leave the house. She called again a
few minutes later and informed the
dispatcher of the medical situation.
Sadly, this information did not reach
the officers on the scene until it
was too late.
Johnson v. City of Memphis,
2010 6th Circuit
• The City was sewed by Johnson’s
widow who made the initial 911 call.
Her attorney said the initial entry into
the house was illegal as there was no
exigency.
• Was there an exigent circumstance to
allow the officers to enter the
residence? Was the force
reasonable?
Johnson v. City of Memphis,
2010 6th Circuit
• A 911 hang call with an unanswered
return call from the dispatcher has
been found to be sufficient to justify
an officer's objectively reasonable
belief that someone inside the
residence is in immediate need of
assistance. Hanson v. Dane County,
599 F.Supp.2d 1046, 1053
(W.D.Wisc.2009).
McKenna v. Honsowetz, 2010
• Officers responded to McKenna’s
home in response to a call to 911
that stated he was having a medical
seizure. During their encounter with
McKenna the officers repeatedly tried
to get him to put on his pants, and
tried to force him to rise, in the face
of his request that they stop.
6th
McKenna v. Honsowetz,
2010
• McKenna having a seizure, officers
then rolled him over, pinned him on
his stomach with their knees, and
handcuffed his arms behind his back
and his ankles. After McKenna had
been taken away to the hospital,
officers searched a dresser drawer in
his bedroom and the medicine
cabinet in the bathroom looking for
prescription or illegal drugs.
6th
McKenna v. Honsowetz,
2010
• Officer Honsowetz admitted that
even in responding to medical
emergencies, he is always aware that
criminal activity may be involved and
he is “always looking to investigate
it.”
• He believed he might be dealing with
an intoxicated person, a person on
drugs, or a diabetic reaction.
6th
McKenna v. Honsowetz,
2010
• In the process, they knocked down
everything on top of the dresser
and threw out his children's babyteeth collection. One of the officers
also ran a check on McKenna's
license plate.
• Did their actions violate
McKenna’s right to be free
from unreasonable
searches and seizures?
Sykes v. Anderson, 2010
6th Circuit
• The officer submitted a warrant
application that contained his
deliberate material
misrepresentations and omissions,
and there was no probable cause
to arrest without these
misrepresentations
and omissions.
Sykes v. Anderson, 2010
6th Circuit
• The court held that liability against
the officers for malicious prosecution
was proper because they provided
the prosecutor with investigatory
material that contained knowing
misstatements, and the prosecutor
relied on many of these falsehoods in
proceeding against the plaintiffs
in their criminal trial.
Ellison v. Balinski, 2010
6th Circuit
• The court upheld the judgment
against the officer in her individual
capacity because her search warrant
affidavit failed to establish a nexus
between the material to be seized
and the place to be searched. The
affidavit did not state how the officer
came to know that plaintiff’s
business was located at his
Ellison v. Balinski,
6th Circuit
2010
residence, or why documentation of
an allegedly fraudulent mortgage
might be found there.
• The court further held that the officer
was properly denied qualified
immunity. The evidence presented…
was so lacking in P.C. that the
officer’s belief in its existence
was objectively unreasonable.
LIABILITY FROM VEHICLE OPERATION
EMERGENCY CALL
comes from a
CALL TO DUTY
CALL TO DUTY
does not always
cause an
EMERGENCY CALL
USE OF FORCE ISSUES
THREAT LEVEL ASSESSMENT
Situations can be generally placed into two
categories:
SUBJECT CONTROL ISSUE
or
PERSONAL SAFETY ISSUE
USE OF FORCE ISSUES
THREAT LEVEL ASSESSMENT
SUBJECT CONTROL ISSUE
The immediate goal being the control of the
subject. There is no evident threat of serious
physical harm or death. However, subject control
issues can rapidly become personal safety issues
depending on the suspect’s actions.
PERSONAL SAFETY ISSUE
The immediate goal is self-preservation. The
intent to make an arrest is second to the
immediate need to survive.
LEO Vehicular Deaths
Knisley v. Pike County JVS,
2010 (6th Cir.)
• Two students told their instructor
that cash, a credit card, and two gift
cards were missing from their
purses.
• Early during the searches, one
student told the school officials that
one of the students was hiding the
items in her bra.
Knisley v. Pike County JVS,
2010 (6th Cir.)
• The students were then taken into
the restroom individually and told to
unhook their bras and lower their
pants halfway down their thighs.
• Was such a search legal???
• Strip searches need an
“individualized suspicion”
Knisley v. Pike County JVS,
2010 (6th Cir.)
• Strip searches should be limited to
situations where
• (1) the school official can articulate specific
facts that indicate that the student is
presently concealing evidence of
wrongdoing beneath his/her underwear and
• (2) the school official can articulate specific
facts that indicate that the student is
concealing a dangerous object or dangerous
drugs and a less intrusive search (i.e.: outer
clothing and bags) has not located the
dangerous object.
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
Garrity v. New Jersey (1967)
385 U.S. 493
Argued November 10, 1966
Decided January 16, 1967
Officers involved in a simultaneous administrative and
criminal investigation may exercise their constitutional
right of refraining from self-incrimination in the criminal
investigation only
Occurred August, 1961
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
Garrity v. New Jersey (1967)
The foundation of Garrity is that a department member
may be compelled to give statements under threat of
discipline or discharge, but those statements may not be
used in the criminal prosecution of the individual officer
This means that the Garrity Rule only protects a
department member from criminal prosecution based upon
statements he or she might make under threat of discipline
or discharge
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
Garrity v. New Jersey (1967)
The Garrity Rule is not automatically triggered simply
because questioning is taking place
The officer must announce that he or she wants the
protections under Garrity
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
Garrity v. New Jersey (1967)
Two prongs under the Garrity rights:
(1) If an officer is compelled to answer questions
as a condition of employment, the officer's answers
and the fruits of those answers may not be
used against the officer in a subsequent criminal
prosecution
(2) The department becomes limited as to
what they may ask. Such questions must be
specifically, narrowly, and directly tailored to the
officer's job
CIVIL LIABILITY and USE OF FORCE
FEASANCE
Introduce the Feasance sisters
CIVIL LIABILITY and USE OF FORCE
FEASANCE
Introduce the Feasance sisters
1.MALfeasance
2.MISfeasance
3.NONfeasance
CIVIL LIABILITY and USE OF FORCE
FEASANCE
Introduce the Feasance sisters
MALfeasance
Misconduct or wrongdoing,
especially by a public official.
CIVIL LIABILITY and USE OF FORCE
FEASANCE
Introduce the Feasance sisters
MISfeasance
Improper and unlawful execution
of an act that in itself is lawful and
proper.
The doing of something lawful in
an unlawful way so that the rights
of others are infringed.
CIVIL LIABILITY and USE OF FORCE
FEASANCE
Introduce the Feasance sisters
NONfeasance
Failure to perform an act that is
either an official duty or a legal
requirement.
TORTS AND CRIMES
BURDEN OF PROOF
Tort
1. Plaintiff has the
burden of proof
2. Preponderance of
the evidence = 51%
Crime
1. State / Prosecution
has the burden of
proof
2. Proof beyond a
reasonable doubt
TORTS AND CRIMES
JURY CONSIDERATIONS
Tort
Crime
1. Does not require a
unanimous verdict
1. Does require a
unanimous verdict
2. Plaintiff prevails if
3/4 of the jury agrees
on the outcome
2. State prevails if all
12 jurors agree on the
outcome
TORTS AND CRIMES
JURY CONSIDERATIONS
In a CRIMINAL case, what
happens if the jury does not
return a unanimous
decision?
TORTS AND CRIMES
JURY CONSIDERATIONS
If the verdict is not
unanimous, it is considered
a hung jury and the
defendant may be retried on
the same charges.
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
U.S. Department of Justice
Civil Rights Division
Federal Civil Enforcement
(42 U.S.C. § 14141)
Enacted January 19, 1994
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
Federal Civil Enforcement
This law makes it unlawful for State or local law enforcement officers to engage
in a pattern or practice of conduct that deprives persons of rights protected by
the Constitution or laws of the United States (42 U.S.C. § 14141).The types of
conduct covered by this law can include, among other things, excessive force,
discriminatory harassment, false arrests, coercive sexual conduct, and unlawful
stops, searches or arrests.
In order to be covered by this law, the misconduct must constitute a "pattern
or practice" -- it may not simply be an isolated incident. The DOJ must be able
to show in court that the agency has an unlawful policy or that the incidents
constituted a pattern of unlawful conduct.
However, unlike the other civil laws discussed below, DOJ does not have to
show that discrimination has occurred in order to prove a pattern or practice of
misconduct.
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
Federal Civil Enforcement
(42 U.S.C. § 14141)
CIVIL LIABILITY and USE OF FORCE
CONSEQUENCES
WHAT REMEDIES ARE
AVAILABLE UNDER THESE
FEDERAL CODES?
CONSEQUENCES
What remedies are available under these laws?
In a civil rights (“1983”) violation, violations of these laws
are not punishable by fine and/or imprisonment. However,
the remedies available do provide for monetary relief for
the victims of the misconduct.
There is private right of action in this section.
CONSEQUENCES
What remedies are available under these laws?
In a criminal (“241,242”) violation, violations of these laws
are punishable by fine and/or imprisonment.
There is no private right of action in this section.
In a civil (“14141”) violation, the remedies available do not
provide for monetary relief for the victims of the
misconduct. Rather, they provide for injunctive relief, such
as orders to end the misconduct.
GROUP EXERCISE
SCENARIO #1:
Action-Response with use of non-lethal force, causing injury
SCENARIO #2:
Action-Response with use of lethal force (firearm), causing
injury
SCENARIO #3:
Emergency Vehicle Operation with a traffic crash, causing
injury
SCENARIO #4:
Unlawful Action (Single incident) as the result of an unlawful
pat-down frisk, causing no injury
GROUP EXERCISE
Address these four issues:
1. What factors would be necessary to prove tort
liability?
2. What factors would be argued to mitigate
(reduce) liability?
3. What potential is there for criminal prosecution?
If any, identify the possible criminal charge(s) by
ORC section and penalty.
4. What method(s) would a plaintiff have to seek a
civil remedy? Who would be the respondant(s)?
LIABILITY FROM VEHICLE
OPERATION
Colbert v. Cleveland (2003)
99 Ohio St.3d 215
Argued February 25, 2003
Decided July 9, 2003
Similarities of “emergency call” and “call to duty”
which causes a professional obligation for a
peace officer’s response
Occurred December 6, 1998
LIABILITY FROM VEHICLE OPERATION
Hewitt v. Columbus (2009)
No. 08AP-1087, 10th Dist.
Argued February 25, 2003
Decided September 1, 2009
Cites Colbert; Plaintiff challenges the liability of
both the agency and the officer alleging under
ORC Chapter 2744
Occurred December 15, 2005