Training Police Department in Section 1983 Liability Discussion Midterm Essay Question: As a student of human resource management in criminal justice org

Training Police Department in Section 1983 Liability Discussion Midterm Essay Question:

As a student of human resource management in criminal justice organizations, you have studied the potential effects and cost associations of section 1983 liability lawsuits arising out of the violation of certain protected Civil Rights. Many times such civil Liability risks can be handled with confidence gained through well-informed personnel who have been well trained in the topic. The author of the article you are to read for this essay provides a well-versed paper on the basics of Section 1983 Liability. This article is 8 pages with 29 additional informational pages. Use the article plus other research accordingly to properly prepare a full and adequate response. This is a policy question issue that will have long-term effects on your department/agency. The sections have been layed out for your use to get to the final recomendation for the CEO of choice contained in the very last question below.

You must format your essays as you would a formal paper, following the guidelines set forth for papers in this course. To adequately respond to the question, you will need to write at least 3 pages (not including the title, abstract, and resource pages.) The essays are open book/open notes.

As you write your essay answer this series of questions:

How much training is enough?

Do I need an attorney to teach this to my personnel?

How often should it be taught?

Should a department policy be updated with each new case?

What policy will you recommend to your chief executive (police), your warden (corrections), your commissioner (state police), your sheriff, and/or any executive role with which you must deal? SUGGESTED TOPICS FOR
TRAINING POLICE DEPARTMENTS IN
SECTION 1983 LIABILITY
PRESENTED AT THE
TEXAS CITY ATTORNEY’S ASSOCIATION
SEMI-ANNUAL MEETING
JUNE 13 – 15, 2007
PRESENTED BY:
WARREN SPENCER
ASSISTANT CITY ATTORNEY III
PLANO CITY ATTORNEY’S OFFICE
PO Box 860358
Plano, Texas 75086-0358
972-941-7558 (voice)
972-424-0099 (fax)
warrens@plano.gov
INTRODUCTION
“To protect people from drowning we can put up fences around our pools, put locks on
the gates into the pool and install pool monitor alarms….but perhaps the best protection
against drowning is to teach people to swim.” Anonymous.
This paper is not about litigating section 1983 lawsuits (at least not in the classic
sense), nor is it about case law updates regarding section 1983 actions. Rather, it is
about the prevention of section 1983 cases. It is about training peace officers in section
1983 issues. Police departments are faced with liability issues everyday – it simply
comes with the territory. As attorneys, we tend focus on how to litigate the issues once
the underlying conduct has occurred. We also train ourselves in skill sets for handling
those lawsuits. This presentation will focus on a different skill set, that of training law
enforcement officers in liability issues. I realize that some attorneys are already involved
in training police officers. Hopefully this presentation will encourage others to become
involved in that training. I have trained police officers in legal topics for about 12 years.
During that time I have discussed training and policy issues with many chiefs of police.
Each one recognizes the need for training officers in legal topics, such as civil liability.
Each one also tells me it is difficult to find attorneys to handle the training. I am a firm
believer in the adage “an ounce of prevention is worth a pound of cure.”
Comprehensive, up-to-date policy/procedure manuals coupled with quality training of
officers are two excellent preventative measures.
This paper will focus on what I suggest should be the minimum points of
discussion for training officers about liability for police actions primarily in the federal
realm. It is intended as a refresher on liability issues for experienced police officers and
police trainers and as an introduction to those issues for persons new to the police
training world. The excerpt from the Texas Law Enforcement Handbook (Holtz &
Spencer, LexisNexis Gould Publications, 2006 Ed.) (“Handbook”) which follows this
general discussion contains case law illustrations of the points discussed in this paper.
The Handbook also contains much information about arrest, search and seizure issues –
which lend themselves well to liability concerns. Another good discussion of the basic
principles of police civil liability can be found in Critical Issues in Police Civil Liability
(Kappeler, Waveland Press, 4th ed., 2006) (“Critical Issues”). Both resources would help
in creating a lesson plan for training officers. Please review the attached Handbook
excerpt for a more complete discussion of applicable case law, with citations.
OVERVIEW OF CIVIL LIABILITY
The costs associated with handling civil liability lawsuits are considerable. A
study published in 2000 of cases involving inadequate training for police officers
revealed the average award for plaintiffs was about $492,000 and attorney fees for the
prevailing party averaged $60,000. A study of federal circuit court cases between 2000
and 2005 found the average jury award for plaintiffs was about $627,000. A 2001 study
in Texas found that about 25% of these cases settled out of court and the average
settlement was about $55,000. Federal courts reported several theories of liability
presented by plaintiffs, including: false arrest, unlawful detention, excessive force,
assault & battery, unlawful search, unlawful seizure, inadequate supervision, improper
strip searches, and inadequate training. (Critical Issues, p. 9-10). As you can see,
police civil liability is an expensive proposition. Much of the liability exposure can be
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minimized by training officers and supervisors in proper procedures, stressing the
importance of supervisory oversight, and maintaining up-to-date policy manuals.
Police officers are not usually sued as individuals. Most plaintiffs want to gain
access to the larger coffers of the government entity that employs the officer. This is
accomplished by suing the municipality and its policymakers as well as the officer.
Plaintiffs will have to establish that the police department chain of command and policy
makers were, or should have been aware, of the behavior that violated a constitutional
or federal protection and were deliberately indifferent to the consequences of the
behavior that eventually led to the actions that prompted the suit. This theory of
extended responsibility is frequently referred to by officers as vicarious liability. It will be
helpful to point out to officers that section 1983 liability is not really vicarious in the truest
sense (holding one person directly responsible for the actions of another); rather, in a
section 1983 action the policy makers of the municipality are being held accountable for
their role in the sequence of events that led to the lawsuit. That role could include, in the
broadest sense, having inadequate policies in place or permitting unconstitutional
practices or customs to remain unchallenged thereby demonstrating a deliberate
indifference to the federally protected rights of the plaintiff.
For example, a plaintiff alleges that an officer used excessive force against her.
That plaintiff could argue that the policies established by the chief are outdated and
inadequate and allowed the officer to engage in illegal conduct; or if the policies were
current and in line with the law on the use of force, the plaintiff could argue the training
staff failed to instruct the skill sets necessary to comply with the policy; or, the plaintiff
could argue that although the policies and training were up to specs, the sergeant failed
to supervise the officer properly and essentially acquiesced to the officer’s illegal
conduct. In theory, these actions (or inactions) by various members of the department
cumulatively lead to liability for the agency and government entity for the acts of the
various employees.
Cases involving violations of civil rights are usually litigated in federal court. The
reason is simple: Texas law provides for a cap on damages for causes of action under
the Tort Claims Act. The Act also sets out strict rules whereby a government entity may
actually be sued. Given the inherent difficulty of suing a government entity in state court,
it is no real wonder that plaintiffs will utilize federal courts when possible, since the
possibility of recovering greater damages is present and there is a provision requiring
the government entity to pay the plaintiff’s attorney’s fees if the plaintiff prevails in the
suit. The focus of this paper will be an overview of federal lawsuits. However, I have
briefly mentioned state law matters in the next section so officers can at least be
exposed to them, should the trainer choose to do so.
STATE STATUTES
Lawsuits involving officers at the state level are generally based upon the theory
of tort law. A tort is simply conduct that interferes with another person’s rights (staying
alive is considered a right for purposes of liability discussions). This body of law does
not address contract rights. In Texas, the relevant statute would be Chapter 101 of the
Texas Civil Practice and Remedies Code. Section 101.021 of this statute states:
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A governmental unit in the state is liable for:
(1)
property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if:
(A) the property damage, personal injury, or death arises from the operation
or use of a motor-driven vehicle or motor driven equipment; and
(B) the employee would be personally liable to the claimant according to
Texas law; and
(2)
personal injury and death so caused by a condition or use of tangible
personal or real property if the government unit would, were it a private
person, be liable to the claimant according to Texas law.
Officers could also be held criminally responsible under state law for violation of
civil rights. One of the best examples of this liability can be found in section 39.03 of the
Penal Code dealing with official oppression. Take a moment and point out to the officers
the various forms of police conduct that fall under section 39.03.
FEDERAL STATUTES
United States Code, Title 42, Ch. 21, Section 1983
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 right, 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.
United States Code, Title 42, Ch. 21, Section 1988(b)
(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1977, 1977A,
1978, 1979, 1980, and 1981 of the Revised Statutes [42 USCS §§ 1981-1983,
1985, 1986], title IX of Public Law 92-318 [20 USCS §§ 1681 et seq.], the
Religious Freedom Restoration Act of 1993, the Religious Land Use and
Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964 [42
USCS §§ 2000d et seq.], or section 40302 of the Violence Against Women Act of
1994, the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs, except that in any
action brought against a judicial officer for an act or omission taken in such
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officer’s judicial capacity such officer shall not be held liable for any costs,
including attorney’s fees, unless such action was clearly in excess of such
officer’s jurisdiction.
United States Code, Title 18, Ch. 13, section 242
Whoever, under color of any law, statute, ordinance, regulation, or custom,
willfully subjects any person in any State, Territory, Commonwealth, Possession,
or District to the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States, or to different
punishments, pains, or penalties, on account of such person being an alien, or by
reason of his color, or race, than are prescribed for the punishment of citizens,
shall be fined under this title or imprisoned not more than one year, or both; and
if bodily injury results from the acts committed in violation of this section or if such
acts include the use, attempted use, or threatened use of a dangerous weapon,
explosives, or fire, shall be fined under this title or imprisoned not more than ten
years, or both; and if death results from the acts committed in violation of this
section or if such acts include kidnapping or an attempt to kidnap, aggravated
sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to
kill, shall be fined under this title, or imprisoned for any term of years or for life, or
both, or may be sentenced to death.
The top two statutes form the basis for the issues surrounding police civil liability
in the federal courthouse. As stated earlier, most actions against police officers for
actions taken in their official capacities will be filed in federal court. Section 1983 sets
forth the prohibited conduct. Section 1988 provides for the recovery of attorney’s fees.
Section 242 is included to illustrate federal criminal liability for officers who violate civil
rights. There are also provisions in the U.S. Code for lawsuits against persons who
conspire to violate civil rights and those who fail to intervene when rights are violated;
however, those statutes are not included as the point is sufficiently made by these three.
A “PERSON”
Section 1983 tells us every person who, under color of…It is safe to conclude
that the individual officer would qualify as a person for purposes of the statute.
Municipalities and municipal officials also qualify as persons under Supreme Court
rulings interpreting section 1983.
ACTING UNDER COLOR OF LAW VIOLATES A FEDERAL PROTECTION
The question will occasionally come up as to whether the officer who takes action
while off-duty is acting under color of law. If the officer identifies herself as a law
enforcement officer and undertakes some sort of arrest function or search function, then
it will be safe to assume that will qualify as acting under color of law. Officers who
engage in purely personal acts of criminal conduct will not automatically be deemed to
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be acting under color of law. For example, an officer who murders his wife then kills
himself and used his department-issued weapon to commit the crime would not be
acting under color of law. It is important to note that each situation will be assessed on
its own facts.
The officer’s conduct must violate a federally protected right. A violation of a
state law proscribing certain police conduct would not be sufficient to state a cause of
action unless the conduct also violated a federal right. For example, in Texas
warrantless arrests are regulated in general by Chapter 14 of the Code of Criminal
Procedure. An arrest that violated one of those restrictions, but was supported by
probable cause would not be sufficient for a federal constitutional violation. The conduct
must rise to a level of significance so as to violate the constitution. Allegations of minor
misconduct, such as a push or a shove would most likely not rise to the level of a
constitutional violation. Allegations of mere negligence would also have difficulty
meeting the requisite level of harm.
INDIVIDUAL AND OFFICIAL CAPACITY;
IMMUNITIES AND DEFENSES
When a plaintiff decides to sue an officer for an alleged civil rights violation, the
plaintiff may sue the officer in her individual capacity, her official capacity, or both. The
plaintiff will usually include the city in the lawsuit – since the municipality qualifies as a
person for section 1983 liability.
Official Capacity:
Generally, if the plaintiff sues the officer in her official capacity only, i.e. not in her
individual capacity, the net result is that it is the same as if the plaintiff sued the city. In
this circumstance, in order to hold a municipality liable for a constitutional deprivation,
the plaintiff would be obliged to show that:
1.
2.
3.
4.
5.
the plaintiff possessed a constitutional or federally protected right;
the plaintiff was deprived of that constitutional or federally protected right;
the municipality had an unconstitutional policy or practice/custom;
the policy or practice/custom amounted to deliberate indifference to the plaintiff’s
constitutional or federally protected right; and
the policy or practice/custom caused the deprivation of the right or protection.
How will the plaintiff establish that the policy maker for the city knew about the
deficient policy? He could show that the policy was designed and implemented in
writing, e.g. an S.O.P. – that would likely show actual knowledge by the policymaker. If
the policy is not in question, then the unwritten custom or practice argument would come
into play. There could be repeated violations of constitutional rights by employees and
the policymaker could fail to take corrective actions. Alternatively, the plaintiff may show
that the policymaker had actual knowledge of the unconstitutional practice or custom.
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Factors that could demonstrate knowledge of the custom or practice on the part
of the policymaker:
1.
2.
3.
4.
participation by the policymaker in the custom or practice;
the amount of direct oversight the policymaker has over the daily
operations;
the process used by the policymaker to review the incident;
the ratification of the custom or policy by the policymaker;
The plaintiff must also show a nexus between the officer’s constitutional violation and the
custom or practice. Some factors that could demonstrate that the action of the
employee was based on a custom or practice are:
1.
2.
3.
4.
5.
6.
7.
8.
9.
the frequency of the illegal conduct;
the extent to which the practice was routine for employees;
the extent to which the practice was accepted by supervisors;
the extent to which employees shared the beliefs underlying the action;
the number of employees involved in the violation;
failure to terminate the employee;
failure to investigate the violation;
failure to discipline the employee;
the failure to take steps to prevent the recurrence of the violation.
(Critical Issues, p.61)
Individual Capacity and Immunities and Defenses:
The difference between suing an officer in her individual capacity versus her
official capacity lies mainly in the defenses available to the officer. The officer sued in
her individual capacity could assert absolute immunity, qualified immunity, probable
cause, and good faith as defenses.
Absolute immunity for peace officers is rare. One example of its applicability
could be when an officer makes an arrest at the direction of a judge – a judge might
verbally order a peace officer to arrest a person in the courtroom – in this circumstance
the officer should be afforded the same level of immunity as the judge who ordered the
arrest. See page 13 of the Handbook excerpt for a more thorough discussion.
Qualified immunity is a more common defense for officers. The standard for
qualified immunity is whether the officer “violated clearly established constitutional or
statutory rights of which a reasonable person would have known.” [Handbook p.8,
quoting the U.S. Supreme Court decision in Harlow v. Fitzgerald, (1982)]. See Handbook
p. 8 et. seq. It should be noted that the officer’s conduct need not have been expressly
addressed in a previous opinion; rather, the law must simply establish fair warning to the
officer that her conduct was unconstitutional.
If the claim against the officer is for false arrest or search, then the officer may be
able to assert the defense of probable cause. An officer would be entitled to immunity
from suit if a reasonable officer could have believed there was sufficient probable cause
for the arrest or search. The safest route for officers is to obtain a warrant from a
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magistrate authorizing the arrest or search, as the issuing magistrate will make the
determination of probable cause. Please note that there are cases that have held that if
an officer submits an affidavit to a judge that no reasonable officer could have believed
set forth probable cause for the warrant, then that officer will not be allowed to assert this
defense. Obviously, an officer who lies in an affidavit would likewise not be eligible for
this defense.
The last defense, good faith, is one where the officer argues that, at the time the
act was committed she could not have reasonably known that the act was
unconstitutional or illegal. This is in effect a rebuttal to the claim that a reasonable
officer should have known her conduct violated clearly established law. The best
example of this defense would be when an officer executes a warrant in good faith, and
it is later determined the warrant was not supported by sufficient probable cause. The
officer could assert this defense with regards to the claim of false arrest or false search.
PRACTICE TIPS
I have found it helpful when training officers to break down the information about
liability into smaller components as a training tool, much like the preceding sections of
this paper. Persons who have the opportunity to train officers regarding liability issues, or
counsel chiefs on liability issues could use the opportunity to stress the following points:
1.
2.
3.
4.
5.
policies shou…
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