Civil Liability
Conditions and Defenses
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.
Key points:
• There are Real Suits, frivolous suits, nuisance suits, deeppocket 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
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
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
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)
Three Categories
• Intentional tort - use in police cases
• Negligence tort- used in police cases
• Strict liability tort - not used in police
cases
Intentional Tort
• False Arrest and False Imprisonment
• Assault and Battery
• Wrongful Death
• Intentional Infliction of Emotional Distress
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
Negligence Tort
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Negligent Operation of Motor Vehicle
Negligent Failure to Protect
Negligent Police Training
Breach of Duty
Proximate Cause
Damage or Injury
Defenses for Suites
• Contributory Negligence
• Comparative Negligence
• Assumption of Risk
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
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
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
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
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
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 -
Federal Tort Claim Act - Defenses
• Absolute Immunity
• Quasi-judicial Immunity
• Qualified Immunity
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
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
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
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”
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
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
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