Lt. Test Book Critical Issues in Police Liability.docx
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Critical Issues in Police Civil Liability 4^th^ Edition By Victor E. Kappeler. Publisher Waveland Press (2006) **[Preface]** - Book is an attempt to aid in the integration of civil law, social science, and police studies. - Criminal Justice students can define a crime but the definition...
Critical Issues in Police Civil Liability 4^th^ Edition By Victor E. Kappeler. Publisher Waveland Press (2006) **[Preface]** - Book is an attempt to aid in the integration of civil law, social science, and police studies. - Criminal Justice students can define a crime but the definition of tort or elements necessary for a finding of civil liability probably not. **[Chapter 1]** - Good statement on how tough it is to be a police officer to open chapter. - Civil liability is possible when officers fail to perform their assigned duties, perform them in a negligent fashion, abuse their authority, or just make poor decisions. - In 5 year period, 3,000 of 600,000 US police officers were sanctioned for misconduct ranging from theft to sexual assaults. - Rodney King got a 3.8 million civil judgment. - Philly officers dropped C-4 explosives from a helicopter in attempt to make members of MOVE group leave a home. Destroyed 61 houses and 59 million in damages. - Several cases of police misconduct and excessive force and the civil payouts with the cases. - Some people perceive governmental bodies as having "deep pockets". This causes police officers to be the most exposed government employees to civil lawsuits. - Occupational misconduct and a judicial trend toward allowing governmental liability has led to an explosion in the number of lawsuits filed against the police. Since 1960's, large increase in lawsuits with many winning. - Police are currently facing 30,000 civil actions annually. - 15-25 percent of officers sued. Estimate - Survey of police chiefs. Civil police liability low on their important issues. One had it 20 of 20. - Not concerned because only **losing 4-8 percent**. - Officer more concerned. Study says 9% concerned of civil liability. Realistically, this number is much higher. - In KY, 50 percent of statewide survey of cadets worried about civil liability. - **LE Officers who have an unrealistic or exaggerated fear of personal liability may become overly timid or indecisive and fail to arrest or search to the detriment of the public's interest in effective and aggressive LE.** - A lawsuit is **Frivolous** if it lacks an arguable basis in law or fact. - Only a very small number against police are frivolous. **Less than one half of one percent.** - Police also bring frivolous lawsuits to court. - Quote by James Frank; Police have 43.6 million contacts annually. 56 percent or 24.5 million are suspects of criminal activity. **So only one tenth of one percent result in civil litigation.** - 1996 survey showed police liability was biggest contributor to the rising cost of municipal liability. Liability insurance now needed. - \*\*\*The cost of an average jury award of liability against a municipality is reported to be about 2 million. - Figure 1.1 page 9 Federal District courts average award 178,000 is top and was for Excessive Force. Federal Circuit Court highest were inadequate supervision at 1.4 million and Malicious Prosecution for 3 million AVERAGES - Many cases settled outside of court. **Up to 25 percent**. - Settling cases outside of court is bad on morale for the officers. - Benefits of Civil Liability 1. If citizen's rights are to have real meaning, there must be some form of enforcement action. 2. Allowing citizens to sue has fostered better police training and more responsible LE practices. 3. When police are held liable for their misconduct, the courts set standards for acceptable and unacceptable behavior. Establish the bounds of professional police practice. - **Justice Marksman of Michigan Supreme Court stated the fleeing party in a police pursuit shall be liable if an innocent person is hurt.** - Person bringing the lawsuit is Plaintiff. Government or person who is being sued is Defendant. - Good description of legal process on page 13. - **Motion for summary judgment by defendant**- argues that the facts of the plaintiff's case as stated cannot possibly merit a jury's consideration. - US Supreme Court has restricted a police or municipality from appealing a denial of summary judgment. Cases will move faster and more settled out of court to avoid a trial. - Jury can find against a police officer but a judge can enter a directed verdict or a judgment of law in favor of the officer. Only granted where there is a complete lack of evidence to support the jury's verdict or overwhelming evidence would not lead a reasonable minded person to the rendered verdict. - Police liability cases can be tied up from 3-10 years on average. **[Chapter 3 The Fundamentals of Federal Liability Law ]** - **Acting Under Color of Law-** In Section 1983 action must be acting under "color of state law" to be held liable for constitutional violations. Color of Law was defined by the Supreme Court in **West v. Atkins 1988**. They stated "State employment is generally sufficient to render the defendant a state actor". - **[Chapter 5 Police Civil Liability For High Risk Drug Enforcement Operations]** - Congress has enacted legislation that permits the death penalty for persons who kill LEO during the commission of a drug related offense. - **Search and Seizure Law in Drug Operations-** Many drug enforcement activities are missions of search and seizure. - **Search-** is the invasion of a person's privacy for the purpose of collecting evidence for a criminal proceeding. **Seizure-** is the actual confiscation of property or evidence from a person's possession. Not just limited to property. People can also be the subject of a seizure if PD place them in custody or curtail their freedom. - **4^th^ Amendment** requires probable cause before a search can be conducted. Reasonable suspicion in limited circumstances. - **List of cases on warrantless Search and Seizure Page 98-99** - Stop and Frisk Terry v. Ohio 1968 - Search of Car based on PC Carroll v. US 1925 - Plain view or open fields Horton v. California 1990 - Protective sweeps Maryland v. Buie 1990 - Probationers residence with RS 2001 - Suspicionless DUI checkpoints Michigan Dept. of State Police v. Sitz 1990 - Temporary detention of suspect without arrest warrant to prevent escape while executing a search warrant Michigan v. Summers 1981 - Border searches based on RS US v. Ramsey 1977 - Need warrant before drug house Payton v. NY 1980 - Absent deception by the officer (affiant), a warrant signed by a judge who has made a probable cause determination is assumed to be a reasonable search. - Many courts along with the Supreme Ct. have questioned the assertion that all felony drug investigations are inherently dangerous for law enforcement. Many courts are not willing to accept overly aggressive police tactics just because the targets are drug traffickers or a drug house. - **While police view drug suspects as dangerous, courts view aggressive police tactical operations with suspicion.** - **These exceptions limit both the circumstances in which a lawful search can be conducted and the scope or invasiveness of the search.** - Supreme Ct. interpretation of the 4^th^ Amendment is not dependent on the officer's intentions (why inside the house?) or the reason of the search. What matters is the intrusion on the people's security from governmental interferences. - **Securing Drug Houses** - **PD that does not train, equip, control, and screen their SWAT teams risk the possibility of civil liability for the damages or injuries they cause during tactical operations.** - **Detentions and Searches of Drug Suspects-** Courts look at three legitimate LE interest to justify detaining an occupant; 1)Preventing flight in the event that incriminating evidence is found. 2) Minimizing the risk of harm to officers. 3) Facilitating the orderly completion of the search. - **Searches of Persons-** - One of the recognized exceptions to the 4^th^ Amendment requirement of a search warrant based on PC is a search in the confines of a detention center. - The use by police of the 4^th^ Amendment exclusionary rule and the related inevitable discovery doctrine in criminal cases does not apply to civil rights actions. - Chatham v. Slagle 1997. Ohio State Troopers and cocaine found in wallet during only a frisk. Ruled illegal search and use of inevitable discovery was not successful. - **Confiscation of Property Hernandez v. Maxwell 1990** - **All money found during search without drugs, should not be taken. If taken, should give receipt and returned if charges are dropped.** - Need more than mere suspicion to seize property. - **Drug Detection and Probable Cause** - Don't have to physically arrest someone or take them to jail to have a false arrest situation. A meaningful restriction on a person's freedom may constitute a seizure. - **Buffkins v. City of Omaha 1990-** Info about drugs coming in on a plane by a black person or persons. Two female blacks confronted coming off the plane and taken to a back room to be interviewed even though they objected. Courts found taking them to the back room to be investigated without their consent was a seizure. Said officers did not have reasonable suspicion based on a tip that they did not investigate and develop independent knowledge of a possible crime or verify the reliability of the information. - **To constitute a reasonable articulable suspicion the known facts must reasonably relate to the person about to be stopped and demonstrate a reasonable suspicion that the person has engaged or will engage in criminal activity.** - **Race alone generally will not support a detention!!! Duh** - Drug dog sniffs in public places has been ruled good to go. But still need search warrant. Ie smells inside a suitcase then get a warrant. - **Kimberly Kingston 1989 FBI Special Agent in FBI Legal Counsel Division suggested these things when using a drug sniffing dog;** 1)If dog sniffs in an area where the defendant has an extremely high expectation of privacy, then a warrant based on PC or an exception to the warrant requirement is a prerequisite. 2) If sniff is done in an area of reduced expectation of privacy, then a mere showing of reasonable suspicion is all that is required. 3)If dog is used to sniff an item located in a public place or a place controlled by a third party, then no search will occur and 4^th^ Amendment proscriptions regarding searches need not be of concern. - Illinois v. Caballes 2005, determined could use drug sniff K-9 on traffic stop as long as the length of the detention did not amount to an unlawful detention. Writing ticket for traffic violation and K-9 sniff occurs. Good. Just how we do it. - **Substance Identification and Analysis-** If an officer does not take reasonable measures to determine whether the evidence uncovered is in fact a controlled substance, liability may result if an arrest is made. **[Chapter 6 Police Liability For Failure to Protect; abandoning citizens in dangerous places and situations]** - For decades researchers have explored the relationship among urban growth, structural change, population density, industrialization, and crime. Used the term "High Crime Areas". - "Hot spots" spawned applied research showing that certain parts of cities produce more police work and consume a significant amount of police resources. - Targeted policing strategies in these areas such as saturation patrol, split-force patrol and street sweeps. - Even with these strategies, researchers report that hot spots are still characterized by **victimization of individuals. This is most prevalent trait of hot spots compared to low-crime areas.** - **Police who work in hot spots more susceptible to lawsuits. This is due to the increased likelihood of citizen victimization, coupled with increased police contact with persons at risk, make hot spots fertile ground for civil litigation.** - **Governmental Liability for 3^rd^ party Criminal Victimization- Public Duty Doctrine** holds that police have no duty to protect the general public from harm, absent a "special relationship". - **Public Duty Doctrine crafted by the Supreme Court in South V. Maryland 1856.** It has been widely adopted in Federal and State courts since then. - **Exceptions to this have come about.** At the Federal level, one exception is when a "governmental entity has a constitutional obligation to provide such protection, either because of a 'special relationship' with an individual or because the governmental entity itself has created or increased the danger to the individual". "Special Relationship" definition still not totally clear, but police may be liable for abandoning citizens in **danger of criminal victimization or injury**. This is particularly relevant in hot spots. - **Courts have hard time determining whether police insensitivity and callousness are evidence of "deliberate indifference" or "mere negligence".** - **Supreme Court has not ruled on a police abandonment case yet, but has in two cases pertaining to governmental liability for 3^rd^ party victimization. Martinez V. California 1980 and DeShaney V. Winnebago County Dept. of Social Services 1989.** - **Martinez, Supreme Court did not find a parole board liable for the death of a 15 year old girl at the hands of a parolee. Used Public Duty Doctrine and stated they must have special knowledge of an impending criminal victimization for them to be liable.** - **Deshaney, 4 year old boy beaten by his father. Social services knew of abuse five times in the past. Plaintiff under the 14^th^ Amendment, brought a Section 1983 claim against social services. Supreme Court found that 14^th^ Amendment does not require the govt. to protect citizens against private injury. Due process clause only applies to limit government power or to "protect people from the state". It did mention in certain situations state could have duties of care and protection of individuals in certain situations. This could be when state creates a dangers situation or renders citizens more vulnerable to danger.** - **4 Considerations to determine liability for 3^rd^ party criminal victimization:** **Public official created or enhanced the danger to which the plaintiffs were exposed** **Took affirmative acts that created or enhanced the danger** **Had knowledge of the impending danger and were deliberately indifferent to the danger** **Had custody of plaintiffs** - Under **Special Relationship Doctrine**, the state can be held liable for a third party's victimization where the state has custody over the plaintiff. Takes custody of somebody against their will. - Under **State Created Danger Doctrine,** it holds that state officials can be liable for private violence when "a state officer's conduct places a person in peril in deliberate indifference to their safety". Failure to intervene, alone, is not sufficient to establish a due process violation. With the exception mentioned in DeShaney, for the state created danger exception must have that the state failed to protect the plaintiff from victimization by a third party and that state agents took an affirmative act that created the danger or enhanced the danger from which they failed to protect. - **Abandoning Vehicle Occupants and Qualified Immunity- Police have usually prevailed in abandonment cases because of qualified immunity.** - **Harlow v. Fitzgerald 1982-** Supreme Ct. held police are not liable under Section 1983 for performing discretionary functions unless their actions violate a "clearly established constitutional or statutory right". - **Hard for plaintiffs to show the police had a constitutional right not to abandon them. If not established at time of incident, police usually afforded qualified immunity.** - More recent court rulings have shown the immunity defense is eroding. For instance, when police take a driver in for DUI and leave an intoxicated person abandoned to operate the vehicle. - **Abandoning Children and Severity of Injury-** Children are more particularly vulnerable to victimization or injury. Thus, the chances of police liability increase if children are abandoned in hot spots or dangerous areas and they suffer physical injury or victimization. - **White v Rockford-** Police held liable for arresting caretaker and leaving children on side of the road. This police action placed individuals in increased danger. Also illustrated that the custody requirement announced in the Deshaney decision may not require police to have formal custody of the person victimized. - Lower court decisions in White, Moore, and Walton show that lower courts look at the physical harm caused by police abandonment in determining liability. Even though Supreme Ct. has ruled SPI is not required to trigger constitutional protections. If no injury, usually police win this civil action. - **Abandoning Assault Victims and Knowledge of Impending Victimization-** PD may be liable if officers abandon individuals in the process of being assaulted especially, if they are present during the assault and do not act. Also, if they have information that a specific person is being assaulted or fail to render assistance to the victim or to protect the specific victim from further injury. - Hot spot could be defined very narrowly and consist of an area within a building that possesses heightened danger to a potential crime victim. - 14^th^ Amendment's guarantee of liberty is violated when the police, with knowledge of an impending assault, abandon likely victims by conspiring with potential assailants. ie. Allow skinheads to assault a person invoking their 1^st^ Amendment rights of Freedom of Speech. Dwares case. - If police have information/knowledge of potential disturbances at concert/parade/political campaings etc. and do not act to quell them then could be held liable. - **Assurances of Police Protection- PD and City could be held liable for their failure to protect the victim of third-party violence when they render assurances of protection or make promises to protect and later fail to implement. This is especially the case when a plaintiff takes action or refrains from action based on these assurances and there is a heightened risk to personal safety.** - Affirmative police actions that place individuals in danger are just as likely to trigger liability as police inaction that leaves individuals vulnerable in potentially dangerous situations. "Special duty to protect attaches when a LE officer's "affirmative" conduct places a citizen in danger". - For police to be held liable in an abandonment case, they must be aware or possess constructive knowledge that the situation in which the potential victim is abandoned is truly dangerous. - General rule, "negligence" "carelessness" "bad judgment" is not sufficient enough to invoke liability. Usually need "reckless disregard" or "deliberate indifference". - **Most cases of abandonment or failure to protect citizens under Federal level are brought under 14^th^ Amendment, claiming either a substantive or a procedural due process rights.** **[Chapter 7 Police Civil Liability For Negligent Pursuits]** - St. Louis 1905 one of nation's first traffic cars due to complaints of speeding. - Most negligent cases are the result of pursuits to apprehend minor traffic violators. - Police driving and accident is litigated under general theory of negligence. Police get no special treatment. - Most jurisdictions grant drivers of emergency vehicles limited statutory immunity when responding to an emergency. - Lakoduk v. Cruger 1956. Washington Supreme Court said the test must be to determine if the vehicle is being used in responding to an emergency call. Depends on the nature of the call and the situation as then perceived to the mind of the driver. - Fiser V. City of Ann Arbor 1983. Michigan Supreme Court stated for statutory immunity to apply, defendant must show that officer reasonably believed an emergency existed. - Ministerial Functions- behaviors that are considered line or operational functions. ie routine driving. - Discretionary Functions- entail policy development or planning tasks. Basically something more than a routine task. Split decision on if vehicle pursuits are ministerial or discretionary. - **[Courts universally recognize the existence of a duty of care by police officers operating motor vehicles. Usually judged by the reasonable and prudent man test.]** - **[Officer does not have to make the best decision, rather, must be reasonable under the totality of the circumstances.]** - Negligence is a question of fact and law. Proving the existence of a duty and then observing a behavior that constitutes a breach of that duty establishes negligence. - The decision by an officer to pursue a suspected law violator generally cannot form the basis of negligence. Therefore, officers are usually shielded from liability for the beginning of a pursuit. - However, courts today say the initial decision to engage in the pursuit and decision to terminate are important. - Seide V. Rhode Island "Police decision to engage in high speed pursuit of fleeing suspect is discretionary" - **[Four Zones of Negligence- Justifications for pursuit, actual vehicle operation, circumstances of operation, and external factors.]** - **[List of many factors the courts will consider with driving page 150-151]** - Cavigliano V. County of Livingston justified a police pursuit by saying "While wet road conditions increased the risk, they also increased the need for immediate apprehension". - Even with unreasonable behavior and breach of duty by the officer, plaintiff must show officer's conduct was the proximate cause of the damage or injury. - State Courts Three approaches to proximate cause in litigation of third party pursuit cases: Proximate cause as a doctrinal barrier to findings of police liability(Usually no liability of police if their vehicle not involved in third party injury). Proximate cause as a function of police conduct in a particular situation Forseeability analysis --person of ordinary intelligence should have anticipated the dangers that his negligent act created for others. - Koning V. Mellema 1995 "The duty of care becomes subordinate to the duty to apprehend" - Fisher V. Miami Dade 2004 was refusal to extend duty of care to innocent third parties. - Growing trend among state courts is to make this a case by case basis and the situational factors present. Officer could be liable after examining the officer's behavior and situational factors even if their vehicle did not collide with victims. - **Contributory negligence- If plaintiff conduct contributed to the injury or damage, recovery is barred aka can't collect against police. Often takes the form of statutory violations.** - This was shown to have lots of inequity and states moved more towards comparative negligence. In Comparative Negligence- court weighs the negligence of plaintiff and defendant and assess a portion of negligence to each litigant. Say split 75-25 then defendant only responsible for 25 percent of damages. - Drunk driver killed 17,000 people a year. 7-10 percent in local jails are from DUI. About 50% of all fatal traffic accidents include intoxicated drivers. - **[Two barriers to negligence claims against the police for failure to arrest drunk driver; sovereign immunity and ministerial/discretionary distinction.]** - If municipality gets insurance coverage for liability then has opened them up more to show this behavior as voluntary, which has led to increased agency vulnerability to lawsuits for police failure to arrest intoxicated drivers. - Dalehite V. US 1953 Ministerial/Discretionary Debate. There is a lack of consistency to show if the decision to arrest an intoxicated person constitutes a ministerial or discretionary act. - Landis V. Rockdale 1992- Intoxicated juvenile kills other motorist. Was stopped two hours early and let go when deputy knew she was impaired. He wanted to play golf so let her go for time purposes. Ruled police had a duty to members of general public to protect them from this. - Courts ruled that LE have the duty, authority and opportunity to prevent intoxicated drivers from continuing to drive. Coupled with their unique awareness of the dangers of drunk driving and ability to prevent, creates a duty to third parties. Summary judgment overturned in this case. - 6 Factors they look at for deciding on ministerial or discretionary page 162. - Determining if damage/injury is forseeable by the officer is big factor in determining ministerial or discretionary. - Chambers-Castaner v. King County 1983- traditional approach to decision making. If officer's decision is ministerial then foreseeability and proximate cause will determine liability. - **Public Duty Doctrine- holds that government functions, such as police protection, are owed to the general public and not to specific individuals. Where a duty is owed to the general public and not to any particular person, there can be no excuse of action or subsequent liability for failure to protect individuals from injuries caused by third parties.** - **1856 was first time US Supreme Court formulated the Public Doctrine.** - Massengill V. Yuma County 1969- held that duty to arrest an intoxicated driver was a duty owed to the general public and that third parties injured by intoxicated drivers who are released by police officers are denied recovery. - Supreme Court of TN stated- Individuals, juries and courts are ill-equipped to judge governmental decisions. Can't decide how a community uses their limited resources. Can't ensure the safety of every citizen so can't be held liable for every citizen injured/damages. Even with this, the Public Duty Doctrine has come under attack. - Rejection of Public Doctrine. Adams V. State 1976 "Duty to all" amounts to "Duty to no-one" and that the doctrine amounts to another form of sovereign immunity that the courts have rejected. - Rejecting Public Duty Doctrine in DUI cases in favor of general negligence tort in state court has been growing trend since it began in mid 1980's. - Dewald v. State 1986- Wyoming Highway Patrol pursues DUI suspect and then discontinues pursuit. Suspect involved in injury collision and state is sued for not protecting the victim injured in crash. Wyoming Supreme Court Rejected Public Duty Doctrine due to states abolition of sovereign immunity. Courts have been ruling this doctrine serves the same purpose of sovereign immunity, which has been rejected. - **Special Relationships- Lacks precise legal definition but implies the presence of factors that transcend the usual police-public relationship. Looks at factors; 1. The intent of state legislation to create a duty particular to a class of individuals. 2. The specific circumstances surrounding the incident and the behaviors of the parties involved. Both could make for potential government liability.** - Forseeability is a critical factor in determining liability. - Look at Irwin, Ryan, and DeWald cases again. Talked about several times. - Most courts have stated in regards to Special Relationships- that forseeable danger exists to an identifiable member of the public. This individual must be set apart and distinct from the general public to create an individual duty. - In Irwin, court found a special relationship existed between the police and innocent third party. Bad ruling for the officers and city. - Shore v. Stonington 1982- Ruled police have discretionary judgment in situations whether to arrest intoxicated drivers. Public interest is not served by allowing a jury to have 20/20 hindsight to second guess a police officer's discretionary professional duty". **[Chapter 9 Liability of Traffic Officers (Negligence at Traffic Scenes)]** - Lots of confusion and lack of uniformity in court decisions on duty of the police for traffic/accident incidents. - Four legal aspects of police duty; **Duty to warn and protect, Duty to render assistance, Duty to investigate traffic accidents, Duty to secure accident scenes.** - When officer or agency has actual or constructive knowledge of a potentially dangerous condition on the roadways and fails to take reasonable action to correct the existing hazard, civil liability may be imposed. - Naylor V. Louisiana Dept. of public Highways 1982- Wreck with oil. State police had transportation dept. put down stuff to soak up oil and lit road flares. Came back and oil still issue and put more road flares. Road flares go out and they don't relight more. Motorcycle wrecks and wins 4 mil. Court said state police have a duty to provide for the physical safety of motorists. Police officer breached his duty when he failed to have oil removed. Court of appeals agreed saying officer non action was a proximate cause of injuries. Court in this case applied the traditional Theory of Negligence. More ocurts in future have gone away from this and have applied the public duty/**special duty doctrine.** - Duty to warn vs Duty to Protect is usually a big discussion. - Westbrooks v. State (Cali). Bridge collapse and police stopping motorist. Car goes past police and falls into water and dies. Ruled the county was negligent in failing to warn of the hazardous road condition. Jury found police had assumed a duty to protect motorists at this scene. On appeal, overturned stating no special relationship was created with the plaintiff. Stated police have no duty to come to aid of other unless special relationship existed" - Two approaches to police liability for failure to warn motorist of traffic dangers. 1) Duty to warn can arise when a municipality or police agency creates a danger to the public. 2) Duty to warn can arise when they have knowledge of a dangerous situation but do not take precautionary measure to prevent injury or damage. - **Duty to Render Assistance-** There is no common law duty to aid strangers in distress. Even though it has been argued a police officer's official function may be to protect and aid persons, this fact alone is not enough to establish liability. - There are exceptions to this as has been ruled on at accident scenes. Must have special relationship, not just officer arriving on scene. Courts use public duty/special duty doctrine instead of common law. - Three Factors that create a special relationship; 1\) Once officer begins to rescue someone, a special relationship has been established. Must complete rescue in non-negligent fashion. 2\) Failure to take simple actions to reduce the risk of harm to an incapacitated individual may lead to liability. Failure to render medical aid or transport an injured person has been considered a breach of duty. Greater duty towards persons incapable of assisting themselves due to intoxication, injury, or unconsciousness. 3\) Liability may be found where officer impedes medical aid or another's attempt at assistance. This breach of duty can be explicit or implicit. STUPID! If officer directs drivers away from accident scene this could be seen as reducing the possibility that others will render aid. Special relationship could then be established and a breach of duty may be found as having impeded medical aid!!!!! Stupid - **Duty to Investigate Accidents-** Officers have no duty and are not liable for failure to collect or maintain information for traffic accidents. Or under any duty to investigate circumstances surrounding a traffic accident. Several court decisions have reinforced this position even though, existing statutes and dept. policy usually say otherwise. - Williams V. California 1983- Plaintiff hit on roadway by brake drum of other vehicle. Police respond and assist him with medical aid. He sues saying they negligence by officer not investigating the car the brake drum came from etc. destroyed in possibility of civil liability against the operator of other car. Police won. - Court found two doctrines that would lead to a special relationship and duty by police. 1) Duty may be breached when police increase the risk of harm to the plaintiff. 2) Duty may be established when an officer undertakes a duty of protection that causes reliance and then damage results. - Special relationship must be found in order for suit to succeed in failure to investigate traffic accident cases. - **Duty to Secure Accident Scenes-** after arrival at accident scene, police officers owe a duty of protection to the general motoring public. For those directly involved and third parties. Still need special relationship for police liability. Leaving the scene of accident is not enough for liability, leaving the scene with additional factors of negligence can constitute the basis for a finding of liability. This falls under the Theory of Negligence. In the area of duty, courts have again used the public duty/special duty doctrine. - **Special relationship** could be found if officers had knowledge of impeding danger, if danger had been obvious, if a traffic hazard had existed at the time, and if the officers had had ample opportunity to correct the situation but failed to do so. **[Chapter 10 Police Liability for Failure to Prevent Detainee Suicide]** - 81 percent of sheriff's offices operate at least one jail. - LE make approx. 14 million arrest per year. - Police have a Duty to Care for their detainees. Suicide rate for persons detained in local jails is between 3-9 times greater than the general public. One of the leading causes of death in local jails and holding facilities. - Four areas of potential liability for the police in this area; Supervision of suicidal detainees, Construction of the custodial facility, The effect of agency rules, regulations, and procedures, Failure to render assistance. - Actions against police with detainee suicide usually falls under wrongful death or negligence claims based on state tort laws. - Negligence- Inadvertent behavior that results in damage or injury. - Negligence torts are distinguished from other torts as they require a lesser degree of foreseeability of danger. - The standard applied in negligence torts is whether the officer's act or failure to act created an unreasonable risk to a detainee. - Still need the 4 elements is establish a negligence claim; Legal duty, breach of duty, proximate cause of injury or damage, and actual damage or injury. - If plaintiff can show a legal duty of the officer to act, then must show the officer's conduct was the proximate cause of the suicide. "Would the detainee have sustained the injury without the officer's conduct". - Determination of proximate cause is a source of considerable differences in the courts. If can prove proximate cause then still need the other elements. - **Special Duty Of Care-** State courts recognizes LE have a duty to care to persons in their custody. Must take reasonable precautions to ensure the health and safety of persons in their custody. General Duty of Care requires custodial officers to keep detainees free from harm, render medical assistance when necessary, and treat detainees humanely. - **Not only incarcerated but police owe the same duty of care to persons in their physical custody outside a jail setting.** - **General Duty of Care SELDOM results in liability for self-inflicted injury or suicide because these acts are normally considered intentional.** - **Sometimes a special duty can be established ad this could open up liability.** - Supreme CT of Alaska stated if a prisoner's suicide is "reasonably foreseeable" then the jailer owes the prisoner a duty of care to help prevent the suicide. This could be a declared intent of a prisoner's mental illness, intoxication, or other impairment. - Special Duty may arise when LE has reason to believe that a detainee presents a danger to himself and LE now has a special duty to care. - Two types of person fall under a diminished ability to prevent sel-injury or cannot exercise judgment; those with a disturbed state of mind (Mental) and who have a diminished ability for self-protection and those impaired by drugs or alcohol. - **Foreseeability of Suicide- Reasonable anticipation that injury or damage may occur as a result of an act or omission.** Depends on a combination of factors. - **List of factors on Page 199.** Common Sense. - Voluntary intoxication does not relieve oneself from liability of consequences but if LE knows the person is impaired beyond due care for themselves, or whose mental capacity is not there then their custodian takes on a duty of care. If have knowledge of this condition could be liable. Joseph V. Alaska 2001 - In Martinez V. City of Brownsville 2001 and Shuff V. Zurich 1965 it hnged on two factors for duty to care. 1) Courts considered extent to which a condition renders a detainee unable to exercise ordinary care and control. 2) Courts considered officer's knowledge of the detainee's mental incapacitation and propensity for suicide. - **Thomas v. Williams 1962-** Intoxicated in a cell with matches and a cigarette. Started fire. Georgia Court of Appeals found police chief liable for knowing this info and allowing him to do it. Good quote "The prisoner may have been voluntarily drunk but was not in cell voluntarily". Officer was bound to deal with his condition with this knowledge. - **Emotionally disturbed arrestees can create a greater duty for police officers to prevent injury or suicide.** - Several cases discussed and shown to have liability when the plaintiff could show that detention and the determination of foreseeability of suicide elevates the police duty of care to a special duty. - **Police Conduct and Breach of Duty- Along with establishing a relationship of special duty, a plaintiff in a negligence lawsuit must prove a breach of that special duty on a case by case basis.** - Each case is different so must consider each particular situation. - Breach of special duty is going to be related to situational factors and existing law. Basically the result of an act or omission of the officer-defendant that violates a recognized special duty. Need both for successful lawsuit. - For plaintiff to be successful, must establish foreseeability that officer had a duty to prevent the suicide attempt and the officers breached the duty in such a manner that the act or omission SUBSTANTIALLY contributed to the suicide. - Links the courts have looked at between and officer's conduct and a suicide; Failure to follow agency rules, regulations, and procedures; properly supervise the suicidal or incapacitated detainee; provide a safe custodial facility; and render medical aid or assistance. - **Violation of Rules and Regulations- Several professional organizations have developed standards applicable to detainee suicides; AMA, NCCHS National Commission of Correctional Health, ACA Amer. Correctional Assoc., CALEA Commission on Accreditation for LE Agenices. However, this standards to not carry the force of law. Not legally binding on officers and cities.** - They have however, been recognized by some courts as objective criteria that can offer guidance in determining what constitutes "reasonable" conduct and "duty" of care. - Violation of national standards as well as agency rules, can provide evidence of negligence, however, the existence of policies, rules in and of themselves are not sufficient to make a determination of negligence. - **Police Supervision-** Several cases in regards to reasonable care for detainee. One said reasonable care does not require 24 hour supervision others require more from police and jail staff. Some states require LE to provide constant supervision for detainees exhibiting emotional or physical conditions that could result in harm ot self and others. - **Courts have not defined what "constant supervision" is.** Also is supervision by video monitoring a ministerial or discretionary function? - **Some say putting somebody under constant supervision may have dehumanizing effects that could make an environment more conducive to detainee suicide.** - **Providing a Safe Facility-** Davis V. Detroit 1986, court concluded that the absence of a detoxification cell was the proximate cause of the decedent's death and constituted a building effect. - Michigan Supreme Court has ruled several times that detainees injured because of unsafe construction in detention facilities, city not liable. But has let cases of negligence and deliberate indifference go forward against individual officers and cities. - **Failure to Rescue-** Failure to rescue or give aid to an injured detainee can show a breach of duty, and establish negligence. - **Defenses to Detainee Suicide-** Officers can use the defense of contributory or comparative negligence, however, they are highly speculative and very dependent on the jurisdiction, state, and specific court being heard. - **Contributory negligence has been ruled against in several cases. Saying special cases, officers had duty to prevent the suicides. Usually with mental illness cases.** **[Chapter 11 Shifting Conceptions of Police Civil Liability and Law Enforcement]** - Prior to 1960s, government liabilities (police included) were not studied as there was not data to study. Over last five decades it has moved rapidly. - Street level officers are **primarily concerned with the personal devastation a lawsuit can bring than the social purposes it serves. Often feeling a No-win situation.** - **[Legal Assumptions and Police Civil Liability]** **Assumption of Litigators- Several legal developments and assumptions made by litigators shape the law of police liability.** - From 1960s-Mid 1980s police litigation was influenced by 1) passage of the Civil Rights Attorney's Fees Award Act of 1976 2) Lack of a substantial body of law on governmental liability, particularly relating to police service. 3) The absence of legal doctrine that precluded filing of police civil liability calims in both state and federal courts. - **Civil Rights Attorney's Fees Award Act of 1976- allowed a reasonable attorney's fee as part of the costs 42 U.S.C. Sec. 1988.** - This has caused claimants (plaintiffs) to be able to find counsel more willing to represent them. Some attorneys do not necessarily have to "win" the civil rights case to collect a fee. Makes them file claims with a slim chance of success. - Supreme Ct. decision in 1983 Board of County Commissioner of Bryan County, Oklahoma V. Brown 1997 stated a claim must exceed negligence and be a product of deliberate indifference. This caused lawyers to be less likely to file a claim in federal court. - Before 1980s, plaintiffs filed actions against police on situational, incident-specific, and fact-based strategies. Cases were largely won based on facts of the individual incident under review. - Now, attorney's now go after the history of a PD. More detailed accounts of similar abuses of authority, more likely of plaintiff of winning a case. Look at police policy, custom, and practice as now a significant factor in determining police liability. Personnel selection, evaluation, retention, and training have become as important as the constitutionality of the incident under review. - **Judicial Assumptions about LE that determined liability;** 1\. The imposition of liability hampers effective law enforcement 2\. It would place unnecessary burden on govt. to demand educating and training. 3\. Police officers and agencies owed no duty of protection to specific members of the general public. - Now, the first above most courts will not accept. This position is reflected often in use of force and pursuits. Now, courts are making the value judgment that Law Enforcement and criminal apprehension should be subordinate (secondary) to the general public. - **Public Safety, Not Law Enforcement, now becoming the issue on which liability hinges.** For instance, drug traffickers is not being accepted as dangerous individuals and use of force being the result of split second decisions. - Police use to be viewed as largely uneducated and lacked sufficient knowledge. Now, this is changing. Courts now see PD as needing training and college education. - **As more principles of law become clearly established, few officers will be granted qualified immunity for misconduct.** - **Supreme Court has basically mandated training in Use of Force, Basic medical care, Pursuit Driving. Training has become more and more important in deciding liability.** - Public Duty Doctrine losing its power. The overused argument that police owe no duty to specific members of the general public is losing its effectiveness in court from this blanket protection under the public duty doctrine. - Tennessee V. Garner 1985 - Police executives began to change PD policies on use of deadly force and high speed pursuits. - **Courts are NOT the leaders of change in either police or civil liability, instead they are the followers of change. Courts usually cling to the common law notion of "the reasonable and prudent". If PD behavior is "reasonable and prudent" if it is a commonly accepted practice.** - **Brower V. Inyo County 1989 Police Road Blocks.** - Training and innovation is now becoming expected. However, when some agencies develop extensive training plans, could open up other agencies who do not have to liability claims. - **"Innovation equals litigation, but stagnation ensures liability"** - Could Community Policing become a source of civil liability?? Closer relationships with the community, does this make it a special relationship and open them up to liability???? Damned if you do, damned if you don't. Could fall under Failure to Protect - Officer Community Policing issues and liability Page 222 - **Technology Arizona V. Evans 1995.** Arrest made on warrant and found drugs after. Warrant was found to be clerical error. Lower courts found Exclusionary Rule applied and found in favor of suspect. Supreme Court showed the officers did not have misconduct and it was just a clerical error with no ill will. This did however show the openness of new liabilities with technology. Opinions from Supreme Court basically put LE on notice that failure to use technology and information properly will be an area closely watched by the courts. - **Globalization and terrorism will forge to develop the police well into the 21^st^ Century.** - Police have changed their focus to places and people deemed to be threatening to the emerging economy. - Most important shift in globalization/terrorism concerns is the federalization of municipal police agencies. Municipalities are doing more to secure border, internet crimes, enforcing immigration laws. Becoming the eyes and ears of the federal govt. - Feds more focused international and leaving domestic to local LE. - Read last section on Page 227. - Innovative police executives will have a substantial advantage over those who are less inclined to change. - The police duty to protect life will come into greater conflict with police actions that threaten life. Courts looking more for police to avoid use of force. - Police executives will see pressure form both sides. Some pushing for decentralized decision making while the COURTS through the liability process, are demanding ever increasing administrative control. - Pressure to abandon Community Policing for LE to curb terrorism. -