Overview of Police Liability
by Jack Ryan, J.D.
While police officers may believe that they will be
exposed to liability for all of their actions, both
proper and improper, the fact of the matter is that
most courts have avoided second-guessing police
actions and have only sanctioned the most egregious
conduct. There are various levels of liability that
may exist when an officer’s actions are deemed
improper. The purpose of this section is to provide a
brief overview of the possible actions that may result
from alleged police misconduct.
Intentional Torts: An
intentional tort would occur when an officer, without
justification, intentionally commits an act which is
recognized by the law as a tort. For example, if an
officer were to use his baton to intentionally strike
someone who had done nothing wrong. In the law of
torts this would be recognized as a battery. In
order to prove a battery; the plaintiff must prove
that the officer intentionally caused a harmful or
offensive contact to the plaintiff’s body. There are a
several intentional torts that, by their nature, are
likely to be the subject of lawsuits against police
officers. Examples include: assault, battery,
intentional infliction of emotional distress, trespassing
and false imprisonment. These torts will be examined
in detail in the sections on particular police conduct.
Negligence Actions: Another type of tort for
which an officer may be sued is the tort of
negligence. There are four basic elements of a
A duty owed- All persons generally have a duty
to act with reasonable care toward those they come
into contact with.
A breach of the duty-A person breaches their
duty when they fail to exercise reasonable care.
Causation- The breach of duty must be the
cause in-fact and the proximate cause of the
Damages-The plaintiff must suffer some damages
as a result of the breach of duty.
Violation of Civil Rights- 42 U.S.C.
sec. 1983: This type of lawsuit is the type that
officers most often face. This statute was created
in order to provide citizens with a remedy for
redressing violations of civil rights. Section 1983
does not create any substantive rights but is a
mechanism for enforcing rights that are granted by
the United States Constitution or by a federal
statue. In order to establish a 1983 claim, a plaintiff
must establish that a violation of the Constitution or
some federally established right has occurred as a
result of some action that was taken under color of
state law. The elements of a 1983 action are:
Violation of constitutional or federally protected
Violation must have occurred as a result of some
action taken “under color of state law.” Under color
of state law does not mean action taken pursuant to
state law, instead “a misuse of power possessed by
virtue of state law and made possible only because
the actor is colored with authority of state law”
constitutes “color of law.”
* Monroe v. Pape,
365 U.S. 167 (1961).
The plaintiff must have suffered some damages.
It should be noted that courts will sometimes
grant “nominal” damages in order to vindicate a
plaintiff’s rights. Nominal damages of $1.00 are not
uncommon in 1983 actions.
NOTE: The federal courts do not have
exclusive jurisdiction over civil rights actions brought
under section 1983; thus a plaintiff can bring a
lawsuit alleging a violation of civil rights in a state
Lawsuits against the agency for a
department’s pattern and practice of violating civil
State criminal code: It must be
recognized that when officers commit an act, which
is not justified by some law enforcement purpose,
and that act constitutes a crime the officer may be
criminally charged. For example, if an officer slaps
a compliant suspect for no reason then the officer
may be charged with simple assault.
18 U.S.C. sec. 242: This statute is a
federal statute that creates criminal liability for the
intentional violation of rights granted by the
Constitution or by federal statutes. As a matter of
policy the United States Justice Department reserves
use of this statute for the most egregious cases.
Some considerations which are taken into account
before the Justice Department will proceed are: the
extent of injuries; the availability of independent
witnesses; the history of the officer involved in the
incident and whether or not punitive action sufficient
to satisfy federal interests have already been
imposed. This statute is nearly identical to sec.
1983 in that the government must show that an
officer’s action, committed under color of law, has
resulted in a violation of Constitutional or federally
granted rights. The difficulty that federal
prosecutors face when prosecuting a section 242
case is the government's burden to prove that the
violation of rights was intentional.
Simple Negligence-Reasonable Care
Shocks the Conscience
Deliberate Indifference: requires a person suing
the police to prove that an officer, supervisor or final
policy maker knew of and disregarded an excessive
risk to person’s federally protected rights
Intent to cause harm unrelated to the legitimate
object of arrest.