Overview of Police Liability   by Jack Ryan, J.D. Source: 2006 LLRMI Legal Updates Archive:   Article Sharing, Duplication & Distribution Policy

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.

Civil Actions

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 negligence action.

1. A duty owed- All persons generally have a duty to act with reasonable care toward those they come into contact with.
2. A breach of the duty-A person breaches their duty when they fail to exercise reasonable care.
3. Causation- The breach of duty must be the cause in-fact and the proximate cause of the plaintiff’s injury.
4. 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:

1. Violation of constitutional or federally protected right.
2. 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).
3. 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 court.

Lawsuits against the agency for a department’s pattern and practice of violating civil rights.

Criminal Actions

1. 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.
2. 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.

• Varying Levels of Care:
1. Simple Negligence-Reasonable Care
2. Gross Negligence
3. Shocks the Conscience
1. 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
2. Intent to cause harm unrelated to the legitimate object of arrest.