CRIMES BY THE GOVERNMENT
“It’s dangerous to be right when the government is wrong.” (Voltaire)
While there are many forms of state crime, as it’s called, this lecture focuses upon the most commonly-seen type of government wrongdoing — police crime — which is most frequently handled by civil law rather than criminal law. 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. With lawsuits against large police departments, the average jury award is $2 million. This isn’t counting the hundreds of cases settled thru out-of-court settlements, which, if added up, would probably run in the neighborhood of hundreds of millions of dollars. Further, it may take five years or more to settle a police liability case.
Because police work involves risky split-second decisions, officers become subject to a wide range of investigations, complaints, and legal actions against them. Investigations and prosecutions may take place on multiple, overlapping jurisdictions (i.e., both state and federal). At the local level, sometimes officers in legal trouble find themselves the target of departmental retaliatory and wrongful personnel action.
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. At other times, it’s common for an individual officer to be the target of a single accusation, and in such civil action, the officer’s personal assets are on the line.
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 purpose is theoretically at least to win and get the agency to change the way it operates; i.e., obtain injunctive relief.
STATE (TORT) LIABILITY LAW
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.
FEDERAL LIABILITY LAW
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. By strict definition, an employee is acting “under color of law” when they are either actually carrying out their official duties or they act in a manner which makes it seem as if they are. Clearly, any behavior while on duty counts, and in addition, an off-duty police officer showing his or her badge is most likely acting under color of law. Some actions taken by private institutions that are doing work for the government (such as a university performing a government contract) may also be considered to be “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 436 U.S. 658 (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
DEFENSES TO LIABILITY
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.
INDIVIDUAL RIGHTS UNDER LIABILITY LAW
The watershed case which gave law enforcement officers a constitutional right to immunity was Garrity v. New Jersey, 385 U.S. 493, 500 (1967), and it applies to Internal Affairs investigations where the officer is ordered (i.e., upon being served with a Garrity order) to answer questions relevant to the investigation or else face immediate discharge. The Court held that “the choice imposed on [officers] was one between self-incrimination or job forfeiture,” a choice the Court termed “coercion.” In particularly strong language, the Court held that “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights,” and ruled that statements which a law enforcement officer is compelled to make under threat of possible forfeiture of his or her job could not subsequently be used against the officer in a criminal prosecution. Further, the fruits of their answers cannot be used for criminal prosecutions. Despite this ruling, police departments continue to utilize Garrity orders, and a subsequent case the following year (Gardner v. Broderick 392 U.S. 273 (1968)) held it unconstitutional for departments to get around Garrity by making officers sign immunity waivers. Since then, police departments “get around” both Garrity and Gardner by ensuring that: (a) Internal Affairs investigations are “specifically, narrowly, and directly” tailored to the employee’s job; (b) that any refusal to answer questions will only result in charges of insubordination, not criminal charges; and/or (c) making it ambiguous over whether a Internal Affairs or “administrative investigation” is going on, and asking the employee to simply write a report (Note: the law is unsettled over exactly how formally a Garrity order must be given and whether asking for a routine report is covered.) Some employers also utilize polygraph testing as part of their “administrative investigations.” Nonetheless, the Garrity Rule applies whenever an officer or any public employee is required by a supervisor to answer questions as a condition of employment and the level of discipline imposed for not answering the question must constitute a “substantial economic penalty.”
Americans for Effective Law Enforcement, Inc.
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Last updated: Aug 15, 2010
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