POLICE LEGAL LIABILITIES: OVERVIEW

Police legal liabilities emanate from a variety of sources ranging from state to federal laws and carrying civil, criminal, and administrative sanctions. For the purpose of an overview, legal liabilities may be classified as in Table 1.

These liabilities apply to all public officers, not just to law enforcement personnel. Probation and parole officers, jailers, prison officials, and other personnel in the criminal justice system are likewise liable. An officer may be liable under any or all of the categories, based on what may essentially be a single act, if the act is serious and all elements that trigger liability are present. The double jeopardy prohibition of the Fifth Amendment does not apply because double jeopardy arises only in criminal prosecutions for the same offense by the same jurisdiction.

Although various legal remedies are available to the public, as the categories in the table indicate, plaintiffs are inclined to use two remedies against police officers. This discussion will therefore focus on those two liability sources to the exclusion of others. These sources are (1) civil liability under state tort law and (2) civil liability under federal law (42 U.S.C. Sec. 1983— also known as Civil Rights Cases).

Table 1 Classification of Police Legal Liabilities

Civil Liability under State Tort Law

Tort is defined as 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 general categories of state tort based on a police officer’s conduct are (1) intentional tort, (2) negligence tort, and (3) strict liability tort. Of these, only intentional and negligence torts are used in police cases. Strict liability torts are applicable in activities that are abnormally dangerous, such that they cannot be carried out safely even with reasonable care. Police work does not fall under strict liability tort; hence that category will not be discussed.

Intentional Tort

This occurs when an officer intends to bring some physical harm or mental effect upon another person. Intent is mental and difficult to establish; however, courts and juries are generally allowed to infer the existence of intent from the facts of the case. In police work, the kinds of intentional tort often brought against police officers are as follows:

• False arrest and false imprisonment. In a tort case for false arrest, the plaintiff alleges that the officer made an illegal arrest, usually an arrest without probable cause. False arrest also arises if the officer fails to arrest the “right” person named in the warrant.

An officer who makes a warrantless arrest bears the burden of proving that the arrest was in fact based on probable cause and that an arrest warrant was not necessary because the arrest came under one of the exceptions to the warrant rule. If the arrest is made with a warrant, the presumption is that probable cause exists, except if the officer obtained the warrant with malice, knowing that there was no probable cause [Malley v. Briggs, 106 S. Ct. 1092 (1986)]. Civil liability for false arrest in an arrest with a warrant is unlikely unless the officer serves a warrant that he or she knows to be illegal or unconstitutional.

False arrest is a separate tort from a false imprisonment, but in police tort cases the two are virtually identical in that arrest necessarily means confinement, which is in itself an element of imprisonment. In both cases, the individual is restrained or deprived of freedom without legal justification. They do differ, however, in that while false arrest leads to false imprisonment, false imprisonment is not necessarily the result of a false arrest.

The best defense in false arrest and false imprisonment cases is that the arrest or detention was justified and valid. An officer who makes an arrest with probable cause is not liable for false arrest simply because the suspect is later proved innocent, nor does liability exist if the arrest is made by virtue of a law that is later declared unconstitutional. In the words of the U.S. Supreme Court: ”We agree that a police officer is not charged with predicting the future course of constitutional law” [Pierson v. Ray, 386 U.S. 555 (1967)]. In these cases, however, the officer must believe in good faith that the law was constitutional. Also, the fact that the arrested person is not prosecuted or is prosecuted for a different crime does not make the arrest illegal. What is important is that there be a valid justification for arrest and detention at the time those took place.

• Assault and battery. Although sometimes used as one term, assault and battery represent two separate acts. Assault is 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. An assault is committed if the officer causes another person to think that he or she will be subjected to harmful or offensive contact. In contrast, battery is 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. The main difference between assault and battery is that assault is generally menacing conduct that results in a person’s fear of imminently receiving a battery, while battery involves unlawful, unwarranted, or hostile touching—however slight. In some jurisdictions, assault is attempted battery.

The police are often charged with ”brutality” or using ”excessive force.” In police work, the improper use of force usually constitutes battery. The general rule is that nondeadly force may be used by the police in various situations as long as such force is reasonable. Reasonable force, in turn, is that force that a prudent and cautious person would use if exposed to similar circumstances and is limited to the amount of force that is necessary to achieve valid and proper results. Any force beyond that necessary to achieve valid and proper results is punitive, meaning it punishes rather than controls.

The defense in assault and battery cases is that the use or threat of the use of force by the police was reasonable under the circumstances; however, what may be reasonable force to one judge or jury may not be reasonable to another. The use of reasonable force includes self-defense or defense of others by the police. The defense is available not only when an officer is actually attacked but also when the officer reasonably thinks he or she is in imminent danger of an attack.

• Wrongful death. This tort, usually established by law, arises whenever death occurs as a result of an officer’s action or inaction. It is brought by the surviving family, relatives, or legal guardian of the estate of the deceased for pain, suffering, and actual expenses (such as expenses for the funeral) and for the loss of life to the family or relatives. In some states, the death of a person resulting from the police’s use of deadly force comes under the tort of misuse of weapons. An officer has a duty to use not merely ordinary care but a high degree of care in handling a weapon, otherwise he or she becomes liable for wrongful death.

The use of deadly force is governed by departmental policy or, in the absence thereof, by state law that must be strictly followed. The safest rule for any agency to prescribe is that deadly force should be used only in cases of self-defense or when the life of another person is in danger and the use of deadly force is immediately necessary to protect that life. Agency rules or state law, however, may give the officer more leeway in the use of deadly force. These rules are to be followed unless declared unconstitutional.

The use of deadly force to apprehend fleeing felons has been severely limited by the U.S. Supreme Court in Tennessee v. Garner [471 U.S. 1 (1985)]. In that case the Court said that deadly force is justified only when the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, the officer may use deadly force if necessary to prevent escape and if, when feasible, some warning has been given. Therefore, ”fleeing felon” statutes in many states are valid only if their application comports with the requirements of Tennessee v. Garner. The use of deadly force to prevent the escape of a misdemeanant should not be resorted to except in cases of self-defense or in defense of the life of another person.

• Intentional infliction of emotional distress. This takes place when an officer inflicts severe emotional distress on a person through extreme and outrageous conduct that is intentional or reckless. Physical harm need not follow. What is ”extreme and outrageous” is difficult to determine; moreover, the effect of an act may vary according to the plaintiff’s disposition or state of mind. Most state appellate courts that have addressed the issue have held, however, that more than rudeness or isolated incidents is required. There is need for the plaintiff to allege and prove some kind of pattern or practice over time rather than just isolated incidents. The case law on this tort is still developing, but it has already found acceptance in almost every state.

Negligence Tort

For tort purposes, negligence may be defined as the breach of a common law or statutory duty to act reasonably toward those who may foreseeably be harmed by one’s conduct. This general definition may be modified or superseded by specific state law that provides for a different type of conduct, usually more restrictive than this definition, in particular acts.

Some of the negligence torts to which police officers may be exposed are as follows:

• Negligent operation of motor vehicle. Police department manuals usually provide guidelines on the proper use of motor vehicles. These guidelines, if valid, constitute the standard by which the actions of police officers are likely to be judged. In some states departmental policies are admitted in court merely as evidence, while in other states the departmental policy is controlling.

• Negligent failure to protect. Police officers in general are not liable for injury to someone whom the police failed to protect; neither is any duty owed by the police to specific individuals to prevent crime. The police, however, have a general duty to protect the public as a whole and to prevent crime. What this means is that the police generally cannot be held liable if a member of society becomes a victim of crime. The exceptions, based on developing case law, are as follows:

1. If a ”special relationship” has been created. Example: The police told a mother that there was nothing they could do when she asked them to protect her daughter from her father. A court order for protection had been issued by a family court; hence, a ”special relationship” had been created because of such judicial order [Sorichetti v. City of New York, 482 N.E. 2d 70 (1985)]. Some states, however, are doing away with the requirement of ”special relationship” and are following a trend toward liability based mainly on the general duty of police to protect the public at large. Should this trend continue, possible liability based on negligent failure to protect will be an even bigger concern for officers in the future than it is now.

2. Where the police affirmatively undertake to protect an individual but negligently fail to perform. Example: The police assure a victim, who calls on a 911 emergency line, that assistance will be forthcoming; the victim relies on the promised assistance, but the assistance never comes and damage is suffered.

Whether the police are liable for injuries to third parties caused by drunken drivers who are allowed by the police to drive has caused a split in court decisions; some courts impose liability while others do not. This area of law is fast developing and changes may be forthcoming in the immediate future.

Civil Liability under Federal Law (Civil Rights or Section 1983 Cases)

The Law

Liability under federal law is based primarily on Title 42 of the U.S. Code, Section 1983, entitled Civil Action for Deprivation of Rights. This law provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

This law, usually referred to as the Civil Rights Law or Section 1983, is the most frequently used remedy in the arsenal of legal liability statutes available to plaintiffs. The law, originally passed by Congress in 1871, was then known as the Ku Klux Klan law because it sought to control the activities of state officials who were also members of that organization. For a long time, however, the law was given a limited interpretation by the courts and was seldom used. In 1961, the Court adopted a much broader interpretation, thus opening wide the door for liability action in federal courts. Among the reasons for the popularity of this statute are that Section 1983 cases are usually filed in federal court, where discovery procedures are more liberal and attorney’s fees are recoverable by the ”prevailing” plaintiff in accordance with the Attorney’s Fees Act of 1976.

Basic Elements of a Section 1983 Lawsuit

The two basic elements of a Section 1983 lawsuit are as follows:

1. The defendant must be acting under color of law. This means that the misuse of power possessed by virtue of the law and made possible only because the wrongdoer is clothed with the authority of the state cannot be tolerated. The difficulty is that while it is usually easy to identify acts that are wholly within the term ”color of law” (as when an officer makes a search or an arrest while on duty), there are some acts that are not as easy to categorize. Examples: P, a police officer, works during off hours as a private security agent in a shopping center. While in that capacity, P shoots and kills a fleeing shoplifter. Was P acting under color of law? Or suppose an officer arrests a felon during off hours and when not in uniform. Is the officer acting under color of law?

The answer usually depends upon job expectation. Many police departments (by state law, judicial decision, or agency regulation) expect officers to respond as officers twenty-four hours a day. In these jurisdictions any arrest made on or off duty comes under the requirement of color of law. In the case of police officers who ”moonlight,” courts have held that their being in police uniform while acting as private security agents, their use of a gun issued by the department, and the knowledge by department authorities that the officer has a second job all indicate that the officer is acting under color of law. On the other hand, acts by an officer that are of a purely private nature are outside the color of state law even if done while on duty.

The courts have interpreted the term ”color of law” broadly to include local laws, ordinances, or agency regulations; moreover, the phrase does not mean that the act was authorized by law. It suffices that the act appeared to be lawful even if it was not in fact authorized; hence, an officer acts under color of law even if the officer exceeds lawful authority. Moreover, it includes clearly illegal acts committed by the officer by reason of position or opportunity.

2. There must be a violation of a constitutional or of a federally protected right. Under this requirement, the right violated must be given by the U.S. Constitution or by federal law. Rights given only by state law are not protected under Section 1983. Example: The right to a lawyer during a police lineup prior to being charged with an offense is not given by the Constitution or by federal law; therefore, if an officer forces a suspect to appear in a lineup without a lawyer, the officer is not liable under Section 1983. If such right is given by state law, its violation may be actionable under state law or agency regulation, not under Section 1983.

Defenses in Civil Liability Cases

Various legal defenses are available in state tort and Section 1983 cases. Three of the most often used defenses are (1) probable cause, (2) official immunity, and (3) good faith.

The Probable Cause Defense

This is a limited defense in that it applies only in cases of false arrest, false imprisonment, and illegal searches and seizures, either under state tort law or Section 1983. For the purpose of a legal defense in Section 1983 cases, probable cause simply means ”a reasonable good faith belief in the legality of the action taken” [Rodriguez v. Jones, 473 F.2nd 599 (5th Cir. 1973)]. That expectation is lower than the Fourth Amendment definition of probable cause, which is that probable cause exists ”when the facts and circumstances within the officers’ 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” [Brienigar v. United States, 338 U.S. 160 (1949)].

The Official Immunity Defense

Official immunity is composed of three categories: absolute, quasi-judicial, and qualified.

• Absolute immunity. This means that a civil liability suit, if brought, is dismissed by the court without going into the merits of the plaintiff’s claim. Absolute immunity does not apply to police officers. It applies only to judges, prosecutors, and legislators. There is one instance, however, when police officers enjoy absolute immunity from civil liability. In Briscoe v. LaHue [460 U.S. 325 (1983)], the Supreme Court held that police officers could not be sued under Section 1983 for giving perjured testimony against a defendant in a state criminal trial. The Court said that under common law, trial participants— including judges, prosecutors, and witnesses—were given absolute immunity for actions connected with the trial process. Therefore, police officers also enjoy absolute immunity when testifying, even if such testimony is perjured. The officer may be criminally prosecuted for perjury, but that seldom happens.

• Quasi-judicial immunity. This means that certain officers are immune if performing judicial-type functions, but not when performing other functions connected with their office. An example is a probation officer when preparing a presentence investigation report upon order of the judge. Quasi-judicial immunity does not apply to police officers because the functions officers perform are executive and not judicial in nature.

• Qualified immunity. The qualified immunity doctrine has two related meanings. One is that the immunity defense applies to an official’s discretionary (or optional) acts, meaning acts that require personal deliberation and judgment. The second and less complex meaning relates qualified immunity to the ”good faith” defense. Under this concept, a public officer is exempt from liability if he or she can demonstrate that the actions taken were reasonable and performed in good faith within the scope of employment.

In Malley v. Briggs [106 S. Ct. 1092 (1986)], the Supreme Court said that a police officer is entitled only to qualified immunity in Section 1983 cases. The Malley case is significant in that the Court refused to be swayed by the officer’s argument that policy considerations require absolute immunity when a police officer applies for and obtains a warrant, saying that qualified immunity provides sufficient protection for police officers because under current decisions the officer is not liable anyway if he or she acted in an ”objectively reasonable manner.” The Court has therefore made clear that in the immediate future, absolute immunity will not be available to police officers but only to judges, prosecutors, and legislators.

The Good Faith Defense

This is perhaps the defense used most often in Section 1983 cases, although it is not available in some state tort lawsuits. Good faith means that the officer acted with honest intentions under the law (meaning lawfully) and in the absence of fraud, deceit, collusion, or gross negligence. The definition of good faith, however, may vary from one state to another—either by judicial decision or legislation. In some cases, state law may provide that officials acting under certain circumstances enjoy good faith immunity.

Courts and juries vary in their perception of what is ultimately meant by good faith, but chances are that the good faith defense will likely be upheld in the following instances:

1. If the officer acted in accordance with agency rules and regulations.

2. If the officer acted pursuant to a statute that is believed to be reasonably valid but is later declared unconstitutional.

3. If the officer acted in accordance with orders from a superior that are believed to be reasonably valid.

4. If the officer acted in accordance with advice from legal counsel, as long as the advice is believed to be reasonably valid

Defendants in Civil Liability Cases—Legal Representation and Indemnification

Plaintiffs generally use the ”shotgun approach” in liability lawsuits. This means that plaintiffs will include as parties-defendant everyone who may have any possible connection with the case. Example: A police officer, while on patrol, shoots and kills a suspect. The victim’s family will probably sue under Section 1983 or state tort law and include as defendants the officer, his or her immediate supervisor, the police chief, and the city or county. The allegation may be that the officer is liable because he or she pulled the trigger; the supervisor, police chief, and the city are also liable because of failure to properly train, direct, supervise, or assign or because of an unconstitutional policy or practice. The legal theory is that some or all of the defendants had something to do with the killing; hence, liability attaches. It is for the court during the trial to sort out culpability and assign fault.

Individual Officer as Defendant

The officer is an obvious liability target because he or she allegedly committed the violation. The officer will be a defendant whether he or she acted within or outside the scope of authority. Most state agencies, by law or official policy, provide representation to state law enforcement officers in civil actions. Such representation is usually undertaken by the state attorney general, who is the legal counsel of the state.

The situation is different in local law enforcement agencies. In most counties, cities, towns, or villages, there is no policy that requires the agency to defend public officials in liability lawsuits. Legal representation by the agency is usually decided on a case-by-case basis. This means that the local agency is under no obligation to provide a lawyer should an officer be sued. If the agency provides a lawyer, it will probably be the district attorney, the county attorney, or another lawyer working in some capacity with the government. In some cases, the officer is allowed to choose a lawyer, and the lawyer’s fees are paid by the agency. This is an ideal arrangement but is unpopular with agencies because of the cost factor.

Supervisors as Defendant

Although lawsuits against law enforcement officers are usually brought against field officers, a recent trend among plaintiffs is to include supervisory officials as defendants. The theory is that field officers act for the department and therefore what they do reflects departmental policy and practice.

There are definite advantages to the plaintiff in including supervisors in a liability lawsuit. First, lower-level officers may not have the financial resources to satisfy a judgment, nor are they in a position to prevent similar future violations by other officers. Second, chances of financial recovery are enhanced if supervisory personnel are included in the lawsuit. The higher the position of the employee, the closer the plaintiff gets to the ”deep pockets” of the county or state agency. Third, inclusion of the supervisor may create inconsistencies in the legal strategy of the defense, hence strengthening the plaintiff’s claim against one or more of the defendants.

If the supervisor does not want to defend the officer, a conflict of interest ensues. In these cases, the agency makes a choice, and that choice will probably be to defend the supervisor. There is nothing the officer can do about that choice, unless formal policy requires the agency to undertake the officer’s defense even in these cases.

Governmental Agencies as Defendant

Most courts have decided that where supervisory liability extends to the highest ranking individual in the department, municipality or agency liability follows. The inclusion of the governmental agency (specifically the city or county) as defendant is anchored in the ”deep pockets” theory, meaning that while officers and supervisors may have a ”shallow pocket,” agencies have a deep pocket because they can always raise revenue through taxation.

States and state agencies generally cannot be sued under Section 1983, because they enjoy sovereign immunity under the Eleventh Amendment to the Constitution. This does not mean that state officials are immune from liability. Sovereign immunity extends only to the state and state agencies; state officials may be sued and held liable just like local officials. While states are generally immune from liability in Section 1983 cases because of the Eleventh Amendment, such protection has largely been terminated for liability purposes in state courts. This means that states may generally be sued under state tort for what their officers do.

Local agencies (referring to agencies below the state level) enjoyed sovereign immunity in Section 1983 cases until 1978. That year the Court decided that local agencies could be held liable under Section 1983 for what their employees do, thus depriving local governments of the sovereign immunity defense [Monnell v. Department of Social Services, 436 U.S. 658 (1978)]. The Court held in Monnell that the municipality will be liable if the unconstitutional action taken by the employee was caused by a municipal policy or custom. The Fifth Circuit Court of Appeals [Webster v. City of Houston, 735 F.2nd 838 (1984)] defines ”policy or custom” as follows:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent widespread practice of city officials or employees that, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.

There are instances when an officer or a supervisor cannot be held liable for damages but the agency or municipality may be. In Owen v. City of Independence [445 U.S. 622 (1980)], the Court said that a municipality sued under Section 1983 cannot invoke the good faith defense that is available to its officers and employees if its policies violate constitutional rights. In Owen, a police chief was dismissed by the city manager and city council for certain misdoings while in office. The police chief was not given any type of hearing or due process rights because the city charter under which the city manager and city council acted did not give him any rights prior to dismissal. The Court held that the city manager and members of the city council acted in good faith because they were authorized by the provisions of the city charter but that the city itself could not invoke the good faith defense.

In a 1985 decision, the Supreme Court ruled that a money judgment against a public officer ”in his official capacity” imposes liability upon the employing agency, regardless of whether or not the agency was named as a defendant in the suit [Brandon v. Holt, 105 S. Ct. 873 (1985)]. In Brandon, the plaintiff alleged that although the director of the police department had no actual notice of the police officer’s violent behavior, administrative policies were such that he should have known. The Court added that although the director could be shielded by qualified immunity, the city could be held liable.

In a 1986 case, the Court decided that municipalities could be held liable in a civil rights case for violating constitutional rights on the basis of a single decision (as opposed to a ”pattern of decisions”) made by an authorized municipal policy maker [Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)]. In this case the county prosecutor in effect made official policy and thereby exposed his municipal employer to liability by instructing law enforcement officers to make a forcible entry, without search warrant, of an office in order to serve capiases (a form of warrant issued by the judge) on persons thought to be there. The case was brought by a Cincinnati, Ohio, physician, based on an incident where law enforcement officers, under advice from the county prosecutor, broke down the door in his office with an ax. The officers were trying to arrest two of the doctor’s employees who failed to appear before a grand jury. The Court decided that this violated the Fourth Amendment rights of the office owners and concluded that the City of Cincinnati could be held liable.

Can the Police Sue Back?

Can the police strike back by suing those who sue them? The answer is yes, and some departments are in fact striking back. The number of civil cases actually brought by the police against the public, however, has remained comparatively small. The reality is that although police officers may file tort lawsuits against arrestees or suspects, there are difficulties in doing that.

One is that in a tort case, the officer will have to hire his or her own lawyer. This necessitates financial expense that the officer cannot recover from the defendant. Should the officer file a tort case for damages, the chances of meaningful success may not be good because most of those who run afoul of the law and have encounters with the police are too poor to pay damages. Moreover, officers oftentimes refrain from filing civil cases for damages because it is less expensive and more convenient to get back at the suspect in a criminal case. Almost every state has provisions penalizing such offenses as deadly assault of a peace officer, false report to a police officer, resisting arrest or search, hindering apprehension or prosecution, and aggravated assault. These can be added to the regular criminal offense against the arrested person, thereby increasing the penalty or facilitating prosecution.

Finally, many officers feel that the harsh treatment they sometimes get from the public is part of police work and is therefore to be accepted without retaliation. Whatever the attitude, the police do have legal remedies available should they wish to exercise them.

Conclusion

Liability lawsuits have become an occupational hazard in policing. The days are gone when the courts refused to entertain cases filed by the public against police officers and agencies. The traditional ”hands-off” policy by the courts is out; conversely, ”hands-on” is in and will be with us in the foreseeable future.

The effects of liability litigations on policing are significant and controversial. Advocates maintain that liability lawsuits afford the public a needed avenue for redress against police excesses and that this, in turn, has led to accelerated police professionalization. Opponents argue, however, that liability lawsuits hamper police work and curtail police effectiveness and efficiency. Whatever the real or imagined effects, liability lawsuits are here to stay. It is a reality that has become part of the price we pay for policing a free society.