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Civil Liability

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									   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, deep-
  pocket 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

•   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

								
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