Chapter 6

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There are 7 theories of supervisor liability found in chapter 6. Discuss 4 of them. 5 paragraphs 

Paragraph 1 = introduction paragraph= contains 1 textbook citation

2) Paragraph 2 = your first point = contains 1 textbook citation

3) Paragraph 3 = your second point = contains 1 textbook citation

4) Paragraph 4 = your third point = contains 1 textbook citation

5) Paragraph 5 = your fourth point = contains 1 textbook citation    

use in text quotes and outside souces as well APA FORMAT

Civil Liability in Criminal Justice

The increasing litigation against criminal justice practitioners in the United States poses a significant problem
for law enforcement and other personnel. Law enforcement and corrections professionals need to have a
working knowledge of both criminal law and the civil law process to ensure they are performing their duties
within the limits of the law. Civil Liability in Criminal Justice, 7th Edition, provides valuable information and
recommendations to current and future officers and correctional system employees, introducing them to civil
liability and federal law, as well as recommending strategies that can be taken to minimize risks.

Civil Liability in Criminal Justice is unique in its combination of applicable case law and related liability
research, while still providing an overview of current case law in high- liability areas. This new edition, a
valuable resource for enhancing student knowledge and practitioner job performance, is revised to include up-
to- date United States Supreme Court cases; liability trends on the use of force, arrest- related deaths, custodial
suicides in detention, and qualified immunity; outcomes of the Department of Justice’s application of Section
14141; additional context for liability issues; and extended coverage of collective bargaining and public
perception.

The text is suitable for undergraduate and graduate courses in Criminal Justice programs as well as for in-
service and academy training. Ross offers an engaging, accessible introduction to this aspect of the U.S.
criminal justice system.

Darrell L. Ross, Ph.D., is Professor and Department Head of Sociology, Anthropology, and Criminal Justice,
and Director of the Center for Applied Social Sciences (CASS) at Valdosta State University, USA. Ross worked
for the Michigan Department of Corrections as an officer, cell block supervisor of mentally impaired prisoners,
probation officer, and instructor in the training academy, and taught in the Police Academy at Ferris State
University as a certified instructor teaching subject control techniques, human factors, mechanics of arrest, and
responding to the mentally ill person. He served on the faculty of Western Illinois University and East Carolina
University. Ross has published five books, more than 95 articles, book chapters, and monographs, and has
provided expert witness services since 1987.

2

“Dr. Ross’s book teaches law enforcement agencies how to see operations through the lens of risk. Now for every training event or planned
operation we identify the risks and the control measures to counter them. The end result: we have seen a remarkable reduction in
consequences of legal liability, and better officer performance and perceived professionalism from the community.”—Jim A. Blocker, Chief of
Police, Battle Creek, Michigan

“Dr. Ross provides the ‘A to Z’ reference book for civil liability in a criminal justice setting, whether it be day to day policing or overseeing
offenders in correctional institutions. A practical, subject-by-subject guide, this book gives clear data and reasoning behind civil liability,
what drives it and how to mitigate it. The final chapter clearly sets out trends based on law and recent Court decisions. A must read, this
book should be in the hands of every American criminal justice executive.”—Jim Ferraris, Chief of Police, Woodburn, Oregon, Police
Department

“This text discusses complex concepts and principles in easily understood language. It is thoroughly researched and well organized. Readers
will learn duties and responsibilities that are owed to all and strategies to prevent harms and avoid or limit exposure to civil liability.”—
Andrew Fulkerson, J.D., Ph.D., Professor, Southeast Missouri State University; former judge and prosecuting attorney, State of Arkansas

3

Civil Liability in Criminal Justice
Seventh Edition

Darrell L. Ross

4

Seventh edition published 2018

by Routledge

711 Third Avenue, New York, NY 10017

and by Routledge

2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2018 Taylor & Francis

The right of Darrell L. Ross to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the

Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means,

now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission

in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation

without intent to infringe.

[First edition published by Anderson Publishing 2013]

[Sixth edition published by Routledge 2015]

Library of Congress Cataloging-in-Publication Data

Names: Ross, Darrell L. (Darrell Lee), 1951- author.

Title: Civil liability in criminal justice / Darrell L. Ross.

Description: Seventh edition. | New York, NY : Routledge, 2018. | Includes bibliographical

references and index.

Identifiers: LCCN 2017054161 (print) | LCCN 2017059362 (ebook) | ISBN 9781351062664

(master) | ISBN 9781138480513 (hardback) | ISBN 9780323356459 (pbk.) |

ISBN 9781351062664 (ebk)

Subjects: LCSH: Tort liability of police–United States. | Tort liability of criminal justice

personnel–United States.

Classification: LCC KF1307 (ebook) | LCC KF1307 .B37 2018 (print) | DDC

345.73/052–dc23

LC record available at https://lccn.loc.gov/2017054161

ISBN: 978-1-138-48051-3 (hbk)

ISBN: 978-0-323-35645-9 (pbk)

ISBN: 978-1-351-06266-4 (ebk)

Typeset in Frutiger and Utopia

by Servis Filmsetting Ltd, Stockport, Cheshire

Visit the e-resources: www.routledge.com/9780323356459

5

Contents

About the Author

Preface

Acknowledgements

1 Overview of Civil Liability

2 Foundations for Liability

3 Civil Liability Under State and Federal Tort Law

4 Civil Liability and Federal Law: Section 1983 Litigation

5 Defenses to Civil Litigation and Risk Management

6 Administrative and Supervisory Liability

7 Liability for Failure to Train

8 Operating Criminal Justice Agencies Under a Consent Decree

9 Personnel Issues and Liability

10 Use of Force in Law Enforcement and Corrections

11 Section 1983 and Correctional Liability Issues

12 Section 1983 Actions in Law Enforcement

13 Liability and Arrest-Related Deaths

14 Liability and Suicides in Detention

15 Conclusions: Shifting Directions in Civil Litigation

Table of Cases

Index

6

About the Author

Darrell L. Ross, Ph.D., is a Professor and Department Head of Sociology, Anthropology, and Criminal Justice,
and the Director of the Center for Applied Social Sciences (CASS) at Valdosta State University. Ross worked
for the Michigan Department of Corrections as an officer, cell block supervisor of mentally impaired prisoners,
probation officer, and instructor in the training academy. He also taught in the Police Academy at Ferris State
University as a certified instructor teaching subject control techniques, human factors, mechanics of arrest, and
responding to the mentally ill person. He served as the Director of the School of Law Enforcement and Justice
Administration at Western Illinois University and was a professor in the Criminal Justice Program at East
Carolina University.

Ross has published five books and more than 95 articles, book chapters, and monographs on the use of force,
stress, and human factors during use of force incidents, liability issues, officer-involved shootings, excited
delirium syndrome, prone restraint and asphyxiation, sudden arrest-related deaths, and custodial suicides. Ross
has provided technical assistance and consultation to local, county, state, federal, and private criminal justice
agencies nationally and internationally, as well as to various branches of the military. He regularly provides
training to line- level officers and administrators and makes presentations at national and international
conferences on officer- involved shootings, use of force issues, sudden arrest- related deaths, and custodial
deaths. Since 1987 Ross has provided expert witness services regarding these and other topics.

8

Preface

Civil litigation filed against criminal justice agencies is an increasing phenomenon. Due to the proliferation of
civil litigation against criminal justice agencies, professors and trainers can no longer just concentrate on the
criminal law. As a response, college courses and training have been developed to expose students and
practitioners to the civil liability process at the university, community college, and agency levels. This book has
been written in an attempt to provide information that will aid in better understanding the civil process.

Due to the nature of civil litigation today, students and practitioners must not only have a working
knowledge of the criminal law but also possess a firm grasp of the civil law process. The two systems have
distinct differences and implications. In contemporary society a criminal justice practitioner must know how to
function in both systems. Students must be aware that their actions as a practitioner will more than likely be
probed by a citizen or a prisoner plaintiff claiming that the practitioner’s actions or inactions deprived them of
their constitutional rights. Likewise, practitioners must be continually updated on judicial decisions that affect
their job performance. This edition of Civil Liability in Criminal Justice has been updated with 103 new cases,
including 26 new United States Supreme Court decisions. The text is written with the needs of college students,
academy recruits, veteran practitioners, administrators, and agency trainers in mind. Acquiring a complete
understanding of the distinctions of both systems will greatly benefit the reader.

The book can be a standalone text for a legal course or a supplement to an administrative course. The text
has not been written as legal advice, because only attorneys may provide such advice. Rather, the text provides
general information relative to the civil liability process that affects police and correctional situations.
Therefore the text has been structured to integrate United States Supreme Court decisions and to provide lower
court rulings in order to illustrate how different cases have been applied to police and correctional situations.
The text also integrates research on civil liability that underscores pertinent legal issues, liability trends and
patterns, policy and procedure issues, training issues, and individual officer and administrative responsibilities.
In this edition 25 new research studies that address varying aspects of civil liability and criminal justice
agencies have been added. Combining these features not only provides useful information in understanding a
court’s decision- making process, but also provides the reader with realistic examples and research on how
cases are applied at the criminal justice agency level.

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Acknowledgements

While a book may be the work and dream of the author, many individuals assist in the final product. First I
would like to thank Michael (Mickey) Braswell, Ph.D., of Routledge Publishing for giving me the opportunity
to revise this edition of the text. His friendship, insights, patience, and suggestions greatly assisted me
throughout the course of updating the book.

The substance of the text would not have been fully completed without the influence of the following
individuals. Thanks to Robert L. Parsons, Ph.D., who encouraged me to pursue a Ph.D. years ago; his continued
guidance, advice, and strategies for working on civil cases have been immeasurable. A debt of gratitude is
owed him for sharing his knowledge in policing, use of force, and civil litigation.

Many thanks to the various civil litigators who successfully defend criminal justice officers and agencies in
civil litigation matters. Working with them on civil cases has greatly increased my knowledge of the civil
process. Their legal skills and talents illustrated during discovery, motion preparation, and in the courtroom are
unmatched and have enhanced my ability to write about the many civil liability issues facing criminal justice
practitioners.

Much appreciation goes to three civil liability scholars who may not be aware that their work and research
in civil liability has greatly influenced my interest in the subject for several years. Thanks to Professors
Rolando del Carmen, Victor Kappeler, and Michael Vaughn for their pioneering and continued research and
publication efforts in this area. These three individuals are, without question, leaders in criminal justice
regarding civil liability issues. Their work has been an inspiration to me to further research, write, and publish
on civil liability topics. Thanks for your work.

Many thanks go to the professors, students, and practitioners who have used the text in order to increase
their knowledge in this continually changing area of the law.

And last, but certainly not least, I would also like to thank my wife Judy and my daughter Gretchen for
understanding and supporting my commitment for endeavoring to continue this research.

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1
Overview of Civil Liability

11

Overview

The intrusive nature of the duties that criminal justice personnel perform exposes them to higher degrees of
liability than other occupations. This is not to suggest that physicians, psychologists, social workers, therapists,
teachers, or administrators are unlikely to be the subject of a civil lawsuit. It is because criminal justice
practitioners restrict citizens’ and prisoners’ liberties and rights, and therefore are more likely to become
involved in litigation than members of other professions.

Among the many job functions that criminal justice personnel perform, responding appropriately to street-
and institution- level situations is paramount. Criminal justice personnel must also exercise a high degree of
skill in using their authority and discretion when implementing department policy and enforcing the law.
Legal actions against law enforcement officers frequently arise out of situations in which they have restricted
the rights of citizens or prisoners. Other litigation may result from allegations of failing to perform legally
assigned duties, performing duties in a negligent manner, misusing authority, using excessive force, or
intentionally depriving a prisoner or other person of his or her constitutional rights.

Filing a civil lawsuit in the United States has become all too common since the 1970s. American society has
become highly litigious, resorting to filing civil lawsuits without hesitation. Litras and DeFrances (1999)
conducted a study for the Department of Justice on the overall trends of 500,000 tort cases filed in the United
States during fiscal years 1996–1997. Civil cases arising out of the 75 largest counties were studied. Types of
claims ranged from personal injury actions, such as airplane accidents, assaults, libel and slander, and medical
malpractice, to motor vehicle accidents and product liability. Motor vehicle accident claims accounted for 20
percent of the cases, while product liability cases accounted for 15 percent and medical malpractice cases
accounted for eight percent. Plaintiffs won 45 percent of all cases filed; they were awarded damages in 86
percent of these cases, and punitive damages in 18 percent. The median award was $141,000. In 10 percent of
the cases the plaintiff was awarded more than $1 million, and in eight percent of the cases awards exceeded
$10 million. Approximately $2.7 billion was awarded in combined compensatory and punitive damages.

Cohen (2005) studied the trends in punitive damages awards in civil trials in the 75 largest counties in the
United States during 2001. He reported that slander (58 percent), intentional tort (36 percent), and false
arrest/imprisonment (26 percent) represent three of the most common categories in which punitive damages
are awarded. Of the 6,504 cases studied, the plaintiff was awarded punitive damages in six percent of the cases.
This percentage has remained stable since 1992. Juries are more likely to grant punitive damages than judges.
In one- half of the verdicts, the plaintiff was awarded $50,000 or more, in 12 percent $1 million was awarded,
and in one percent $10 million was awarded. Punitive damages exceeded compensatory damages in 43 percent
of the cases. Medium and maximum ranges of punitive damages were reported on the three common
categories: intentional torts ranged from $16,000 to $4.5 million; slander ranged from $77,000 to $700,000; and
false arrest/imprisonment ranged from $8,000 to $100,000.

With the most available figures available, Kyckelhahn and Cohen (2008) performed an assessment of the
trends in civil litigation in federal district courts and the outcomes of civil rights disputes from 1990 to 2006.
They reported that a significant reason for the variance of trends in civil litigation is the expansion of civil
rights law with the passage of the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991. The
Civil Rights Act of 1991 amended several federal employment discrimination laws. The Act also provided for
compensatory and punitive damages to be awarded, and expanded the use of jury trials.

In the 17- year assessment, Kyckelhahn and Cohen reported that overall civil rights cases filed in federal
district courts more than doubled during the 1990s, then began to decline in the early 2000s, and from 2003 to
2006 filings in federal district courts decreased by approximately 20 percent. From 1990 to 2006 the percent of
civil rights claims concluded by trial declined from eight to three percent. From 1990 to 2006 about nine out of
10 civil rights filings involved disputes between private parties. The trend in filing private- party disputes
emerged with about 16,300 cases filed in 1990, increased to a peak of 40,400 in 1997, and declined to 30,400 cases
in 2006.

In 1990, jury and bench trials each accounted for 50 percent of all civil rights trials, but by 2006 jury trials
accounted for 87 percent of civil rights trials held in federal district courts. During the reporting period,

12

employment discrimination accounted for about half of all civil rights filings in federal district courts, but
filings began to decline in 2004. The percentage of plaintiffs who won at trial amounted to about 30 percent.
From 2000 to 2006 the median damages award for prevailing plaintiffs ranged from $114,000 to $154,500. The
combined 2000 to 2006 median jury award was $146,125, while the median bench award was $71,500. The
period from filing a civil rights suit to resolution in federal district courts took, on average, about 10 months.

Further, Lanton and Cohen (2008) examined the dispositions of civil bench and jury trials in state courts in
2005. They assessed 26,950 disposed cases, which account for a small percentage of the 7.4 million civil claims
filed in state courts around the country. They reported on nine litigated categories and found that the plaintiff
prevailed in 56 percent of the filings, that plaintiffs were awarded punitive damages in five percent, and the
median damage award amounted to $28,000.

Plaintiffs were more likely to prevail in claims involving motor vehicles, animal attacks, and employment
discrimination, and less likely to prevail in claims of false arrest/imprisonment and product liability, to
mention only a few. High combined compensatory and punitive awards of near or more than $100,000 included
premises liability, employment discrimination, medical malpractice, and asbestos. More than 60 percent of the
plaintiff winners were granted final monetary awards of $50,000 or less. A jury decided 90 percent of the
personal tort claims, while judges decided about 70 percent of business- related civil trials (contracts and real
property) in 2005.

Moreover, Cohen and Harbacek (2011) examined punitive damages awards in state courts during 2005. As
discussed in Chapter 2, tort claims such as assault and battery are litigated in state courts.

Compensatory and punitive damages may be awarded to the prevailing plaintiff. Cohen and Harbacek found
that, in 25,000 tort claims, 12 percent of the plaintiffs sought punitive damages and were awarded in five
percent. Of these awards, 30 percent were awarded about $64,000 and 13 percent were awarded punitive
damages of $1 million or more. The researchers also reported that punitive damages are more likely to be
awarded in assault and battery, slander, or libel cases, which have elements of willful or intentional behavior
that would support a punitive damages request.

Criminal justice agencies and personnel are also vulnerable and easy targets for litigation. During the 1980s
and 1990s there were unfortunately a number of high- profile civil liability cases that brought to the forefront
the problem of police and correctional officer misconduct nationally. The City of Philadelphia, Pennsylvania,
paid out approximately $3.2 million in 1996 in two separate lawsuits related to a bombing incident that
occurred in 1985. Police officers dropped C- 4 explosives from a helicopter on a residence in order to drive out
members of an anti- government group. The bomb ignited and fire spread through numerous residences,
destroying 61 structures and killing 11 people.

Other incidents have created controversy about police conduct and have resulted in civil litigation. The
beating of Rodney King in 1991 led to three Los Angeles police officers being criminally indicted, convicted,
and sent to federal prison. Later the City of Los Angeles, California, paid out $3.8 million in a civil judgment to
King. In 1993 two Detroit, Michigan, police officers were prosecuted, convicted, and sentenced to prison for the
beating death of Malice Green. In 2000 several New York City police officers were convicted and sentenced to
prison for beating Abner Louima and forcing a toilet plunger handle into his rectum.

Moreover, there have been successful outcomes in high- profile cases alleging officer misconduct. In the
spring of 2000, four New York City police officers were acquitted of criminal charges in the shooting death of
Amadou Diallo. In that case the officers fired their weapons 41 times. Officers approached Diallo and he made
a sudden reaching movement for his wallet. Because of low lighting in the doorway of the apartment complex,
visibility was poor and officers mistakenly took his movements as threatening and the appearance of the wallet
for a weapon.

In the summer of 2000 the Federal Bureau of Investigation prevailed in a civil lawsuit brought by survivors
and families of the Branch Davidian group in Waco, Texas (Garcia, 2000). Agents of the Bureau of Alcohol,
Tobacco, and Firearms (ATF) were executing a warrant for the arrest of David Koresh for firearms violations
when they encountered lethal resistance from him and members of his cult in February 1993. Several agents
were injured and six were killed. For more than 50 days Koresh and his followers refused to exit their
compound and submit to arrest. The siege ended with the main housing structure being burned as FBI agents
attempted to enter the building.

Four million dollars in damages were paid out for a deadly force incident in 1995. The Ruby Ridge standoff

13

incident in Montana left one U.S. marshal and the wife and one child of Randall Weaver dead. An FBI sniper
shot and killed Vicki Weaver while holding her infant child. Federal agents were attempting to arrest Weaver
on charges of possessing and selling illegal firearms.

While individual civil lawsuits filed against police officers have gained momentum since the 1980s, the
federal government, through the Department of Justice, has brought civil lawsuits against several police
departments. These lawsuits have been brought under § 210401 of the Violent Crime Control and Law
Enforcement Act of 1994 (Title 42 U.S.C. § 14141). The Pittsburgh, Pennsylvania, and Steubenville, Ohio, police
departments were the first police agencies to complete federal oversight through a consent decree for five years
through this law (DOJ, 1997a, b; 2005).

Jails and prison systems in the United States are also subject to prisoner civil litigation and many have
sustained consent decrees. Koren (1994) reported that the number of correctional systems under court
order/consent decree increased from 11 in 1988 to 39 in 1994, largely due to prisoner litigation. Correctional
entities have also been targets of prisoner litigation. In 2000 the Michigan Department of Corrections settled
several civil lawsuits involving sexual abuse of female prisoners by male officers. In Texas a privately operated
jail incurred litigation stemming from a shakedown in which officers were alleged to have used excessive force
and physically abused prisoners, violating their constitutional rights. The actions of the “shakedown” were
videotaped and later broadcast on Dateline NBC in 1997. The videotape showed officers and command
personnel requiring prisoners to crawl across the floor nude, while officers kicked and pepper- sprayed them,
prodded them with stun- guns, and then used a dog to move them out of their cells. On several occasions the
videotape showed the dog biting various compliant prisoners. This incident resulted in a civil litigation claim
against the sheriff, the chief deputy, and a county official in charge of the detention center’s emergency
response team (Kesler v. King, 1998). The claim alleged the use of excessive force, failure to train, failure to
supervise, and a failure to screen prospective officer candidates prior to employment. The court ruled against
the county, holding that it was not objectively reasonable to use force or the canine in such a situation, in
which prisoners were compliant.

The purpose of this chapter is to examine the prevalence of civil liability in police and correctional work.
Since the 1960s citizens and prisoners in the United States have, with increasing frequency, filed civil lawsuits
against police and correctional officers. Trends and the subject matter of these lawsuits are still emerging, and
accurate data that fully track this area of the law are sparse. Recognizing this, emerging trends and patterns of
citizen and prisoner litigation are presented.

Trends in Police Civil Lawsuits

Much of the previous scholarly research on police civil liability has focused on precedent- setting cases decided
by the United States Supreme Court (Barrineau, 1987, 1994; del Carmen, 1993; del Carmen & Smith, 1997;
Franklin, 1993; Kappeler, 1997; Klotter, 1999; Smith, 1995; Wardell, 1983). Specific police civil liability research
has addressed issues of police actions “under color of law” (Vaughn & Coomes, 1995; Zargans, 1985); deaths in
detention due to suicide (Kappeler et al., 1991); police misconduct (Littlejohn, 1981; Meadows & Trostle, 1988;
Schmidt, 1976; Silver, 2010); negligent operation of police vehicles and failure to arrest drunk drivers (Kappeler
& del Carmen, 1990a, b); officers’ attitudes toward police liability (Garrison, 1995; McCoy, 1987); liability for
abandonment in high- crime areas and moonlighting (Vaughn, 1994; Vaughn & Coomes, 1995); trends in
settling civil cases (Bureau of Justice Statistics, 1995, 1999, 2005); liability in sudden, wrongful custodial deaths
(Ross, 1998, 2005, 2007); liability trends in the police use of force (Ross, 2002); liability trends in custodial
suicides and sudden in- custody deaths (Ross, 2007, 2008a, b); and liability issues affecting police pursuits (Ross,
2008a, b).

While a great deal of research exists relative to civil suit analysis, a dearth of accurate statistical information
exists regarding the trends and types of lawsuits filed against police. It is difficult to precisely assess the true
nature of lawsuits filed against the police, partly because the courts publish only a portion of the cases they
decide and judges are selective in documenting those cases. There is no systematic method for collecting
information specific to police civil litigation. The Administrative Office of the U.S. Courts (AOC) tracks federal
civil actions annually but does not specifically report cases filed against the police. Current literature reveals
that civil lawsuits against police are widespread (Worrall, 1998), frequent (Kappeler, 1997), increasing (Kappeler

14

et al., 1993), and a major concern to law enforcement officers (Garrison, 1995; Scogin & Brodsky, 1991), police
chiefs (Vaughn et al., 2001), and government leaders (MacManus, 1997).

In the absence of this information, researchers are forced to speculate about the trends and patterns of police
civil litigation. A limited number of researchers in the past have used surveys or content analysis methods to
examine trends in police civil litigation and they suggest that the number of cases filed against police officers is
growing (Americans for Effective Law Enforcement, 1980, 1982; Barrineau & Dillingham, 1983; International
Association of Chiefs of Police, 1976; Kappeler, Kappeler, & del Carmen, 1993). Surveys administered by
Americans for Effective Law Enforcement (AELE) report civil lawsuits filed against the police rose from 1,741
cases in 1967 to 3,894 in 1971, a 124 percent increase. They also report that by 1976 more than 13,400 cases were
filed against the police (1982), making a 500 percent increase from 1967. More than 40 percent of all suits
during this period alleged false arrest, false imprisonment, or malicious prosecution. Claims of excessive force
by officers amounted to 27 percent of the allegations, and six percent of the claims alleged the misuse of
firearms. The International Association of Chiefs of Police (IACP, 1976) indicated during this same period that
one in 34 police officers was sued. In the early 1980s AELE estimated that more than 26,000 cases were filed
annually (1982), and one legal scholar has estimated that, since the 1990s, police have faced approximately
30,000 lawsuits annually (Silver, 2010).

Prior studies have revealed a variety of monetary awards for plaintiffs. A survey conducted by the National
Institute of Municipal Law Enforcement Officers revealed that the 215 municipalities surveyed faced costs of
more than $4.3 billion in pending liability lawsuits (Barrineau, 1987). The average cost of a jury award against
a municipality is reported to be about $2 million (del Carmen, 1987). In the mid- 1980s there were more than
250 cases in which juries awarded at least $1 million (National League of Cities, 1985). A study of § 1983 police
lawsuits from 1983 to 1997 in two federal district courts in New York revealed that monetary damages were
awarded in 30 percent of the cases (Chiabi, 1996). Damages awards ranged from $400 to $950,000, averaging
$50,408. During this 14- year period the total monetary awards amounted to $4,536,702. Damages were more
likely when a case was settled (47 percent) as opposed to when a jury or court awarded monetary relief (22
percent).

In studying liability trends of § 1983 litigation in U.S. district courts between 1978 and 1995, Kappeler (1997)
found that the average award (and attorney’s fees) against police departments was $118,698, ranging from $1 to
$1.6 million. Scarborough and Hemmens (1999) examined U.S. courts of appeals decisions from 1989 to 1993.
They reported monetary damages in only 27 cases, ranging from $1 to $7,559,000. Attorney’s fees ranged from
$12,500 to $325,000, with a mean of $65,898.

These figures obviously do not reflect cases that are settled out of court, which represent a majority of police
litigation. Moreover, these awards do not reflect the personnel time, resources, and legal and expert witness
fees spent in defending a case. Chiabi (1996) reported that 32 percent of all police litigation in two federal
district courts in New York was resolved through settlement. Worrall and Gutierrez’s (1999) survey of 50
attorneys representing cities with police departments with more than 100 officers found that 41 percent of cases
were settled.

From 1994 to 2001 the West Virginia State Police paid out $7.8 million due to wrongful arrests; $700,000 in
2001 for the same charge; and $88,000 in 2002 and $44,000 in 2003 for claims of failing to train and supervise
officers (U.S. Commission on Civil Rights, 2004). From 2001 to 2004 the City of Los Angeles, California, paid
out more than $4 million in police civil lawsuits ranging from sexual discrimination against gay police officers
to two cases involving the use of lethal force (Los Angeles Times, 2004).

A study of the New York Police Department conducted between 1987 and 1991 showed that the city paid out
$44 million in claims to settle police misconduct litigation. During this five- year period the average settlement
or judgment awarded to the plaintiff more than doubled, from $23,000 to $52,000. In 1996 the New York Police
Department settled 503 police misconduct cases for $27.3 million and complaints made to the civilian review
board increased sharply (Sontag & Barry, 1997). In 1991 the Los Angeles Police Department paid $13 million in
damages awards for police misconduct (Christopher Commission, 1991). A Justice Department study of Los
Angeles County found that county officials settled 61 police misconduct cases, paying plaintiffs between
$20,000 and $1.7 million per case. In 1999 the LAPD paid $2 million in monetary awards and settlements
(McGreevy, 2000). In 1991 the City of Detroit paid $20 million in damages awards (del Carmen, 1991). One
officer cost the City of Detroit $2.4 million over several years as he incurred 13 lawsuits, primarily due to

15

excessive force claims (Ashenfelter & Ball, 1990). All the civil lawsuits were settled.
Other studies have documented trends in police civil litigation. Swickard (2005) reported that the City of

Detroit has paid out more in police civil litigation than any other large city in the country. Swickard reported
that a city council study showed that Detroit paid out more than $118 million from 1987 to 2005 and nearly $45
million from 2001 to 2004 to settle police misconduct lawsuits. This rate accounts for about $4,000 per officer,
or about $17 per person living in Detroit. Of the 4,100 officers, 261 were named in more than one suit, and 107
of these officers were sued in three or more cases. Suits naming these officers cost more than $32 million from
1997 to 1999. By comparison, the City of Los Angeles, California, paid about $3,000 per officer to settle police
civil lawsuits, while New York paid about $1,300 and Chicago paid just under $1,000 per officer.

While comparisons of the trends of civil litigation among cities are problematic, general patterns are worth
noting. The City of Chicago paid slightly more than $17 million in settlements for police lawsuits from 1997 to
1999 (Swickard & Hackney, 2001). In Cicero, Illinois, the city paid out $1.1 million to settle two sexual
harassment lawsuits and one excessive force lawsuit from 2000 to 2003 (McNeil, 2005). From 1991 to 2001 the
City of Cincinnati, Ohio, paid about $2.4 million to settle 56 cases (McLaughlin, 2001). The settlements are but
a portion of the $685 million that it takes to operate the city annually. In the largest payout in the history of the
department, the City of Oakland, California, settled a class action lawsuit claiming that a few “rogue” officers
victimized more than 100 citizens, amounting to $11 million (DeFao, 2003). A court awarded $1 million against
the City of San Jose, California, in the wrongful death of a mentally impaired man (Associated Press, 2005).

The trends of these cities show multimillion dollar settlements, with the exception of Newark, New Jersey
(ACLU- NJ, 2010). While caution must be used in reviewing these figures— because of cities’ varying
demographics and population sizes that affect economic conditions, the differing numbers of police officers
employed in each city, and the host of other variables that may impact civil litigation and settlements— the
figures do show the enormity of the litigation problem during the opening decade of 2000. It appears settlement
payout amounts are increasing as attorney wages/fees increase, some cases involve numerous plaintiffs, and
many cases get grouped into the same year the case actually settled.

A prime example of the city population variance and the amount of settlement payouts is Oakland, CA.
Oakland, with a population of about 400,000 residents, is less populated than any other city represented in
Table 1.1, other than Newark, NJ. Yet it is third behind New York and Los Angeles for the largest amount of
settled case payouts during the decade. Settled case payouts for Oakland doubled the amount of payouts for
San Francisco, which has twice the residential population (KTVU Channel 2, 2011).

These examples show the importance of the subject matter and give some indication of the sheer volume of
the claims filed, the staggering settlement amounts, and the ongoing attention that officers and administrators
need to pay to the issue. Concern about being sued has been examined by several researchers. Del Carmen
(1991) commented that the fear of being sued is an occupational hazard. Breslin, Taylor, and Brodsky (1986)
suggest that job performance may be hindered by a preoccupation with litigation. Scogin and Brodsky (1991)
surveyed police cadets in an Alabama training academy and reported that 84 percent believed their fear of
being sued was rational and non- excessive. Only nine percent reported that their fear of litigation was
irrational and excessive. A study of Kentucky police cadets (Kappeler, 1997) found that 50 percent were
worried about civil liability and 31 percent thought they worried to excess. The settlement payouts shown in
Table 1.1 continue to underscore these concerns.

Perhaps the most comprehensive research regarding longitudinal trends in police civil liability was reported
in a content analysis by Kappeler, Kappeler, and del Carmen (1993). They reported on 1,359 § 1983 cases filed
against the police that were published from 1978 to 1994 and found that police prevailed in 52 percent of the
cases (706). The analysis examined 20 major topics of civil liability. Findings revealed that plaintiffs are more
likely to prevail in claims of illegal strip searches (76.4 percent), inadequate policy (68 percent), coercion (63.6
percent), excessive force (59.6 percent), infliction of emotional distress (56.7 percent), inadequate training (53.5
percent), inadequate supervision (55.4 percent), assault and battery (55.4 percent), and failure to protect (51.2
percent). Three of the major topics of frequent litigation pertain to managerial functions: policy, training, and
supervision. The average award and attorney’s fees assessed against police departments were determined to be
$118,698. Vehicle pursuits and excessive force claims averaged the highest awards granted to plaintiffs, $1.2
million and $178,878 respectively.

Ross and Bodapoti (2006) completed a longitudinal analysis of the claims, litigation, and losses of law

16

enforcement agencies insured by the Michigan Municipal Risk Management Authority (MMRMA). The trends
and patterns of these claims were examined from official MMRMA records from 1985 to 1999. The total
number of claims studied was 11,273 and represented incidents from municipalities (n=94) and sheriff
departments (n=57), including claims from detention facilities. Municipalities accounted for 89 percent of the
total claims filed. These agencies were dispersed throughout the state and included metropolitan, suburban,
and rural departments.

The average annual total costs paid for all claims amounted to $10 million, but from 1996 to 1999 the total
amount paid out declined by three percent. Approximately 20 percent of the claims closed without a loss (a
payout). A claim may include a lawsuit filed by an arrestee, detainee, or employee. A claim may also include
property damage, personal injury due to a worker’s compensation claim, a loss from an accident, or an act of
God. Overall, county agencies were more likely to incur a claim, a loss, as well as incurring the most costs of
all claims filed. The larger- sized agencies (100- plus sworn officers) incurred almost twice as much in losses
paid as smaller agencies. From 1985 to 1992 the average time to close a case from date of filing took 40 months;
from 1993 to 1999 the average time from filing a claim to closure was 18 months.

The analysis revealed 25 common categories in which claims were filed. Of these, 15 claims specifically
emerged from law enforcement agencies and the remaining emerged from detention facility incidents (see the
section below for a discussion on detention claims). The most frequent claim filed was an auto accident with
an injury (40 percent) and it was classified as moderate in monies paid out. Other common claims included
administrative liability (14 percent), excessive force (11 percent), police pursuits with or without injury (10
percent), false arrest/imprisonment (eight percent), denial of medical care (four percent), property claims (four
percent), and wrongful deaths (three percent). Common claims filed against agency administrators included
failure to train, supervise, and direct. There was an emerging trend of claims filed against administrators by
agency personnel for allegations of sexual harassment and discrimination.

On average, the agencies closed a claim without a loss in 78 percent of the cases filed. On average, claims
were resolved without paying a loss in 81 percent of the cases. The highest average payout for claims lost and
percentage of claims lost by an agency occurred in the following categories: wrongful deaths ($295,000/35
percent), denial of medical care ($151,000/38 percent), auto accident with injury ($50,000/80 percent), police
pursuits ($48,000/59 percent), administrative liability ($40,000/20 percent), excessive force ($33,000/37 percent),
and false arrest/imprisonment ($15,000/32 percent). The average cost to defend a lawsuit with an attorney
amounted to $40,000. When an attorney was used to defend a claim in court the defendant agency prevailed in
75 percent of cases.

This study represents the first to longitudinally examine multiple agencies from one state, using official
records to perform the analysis. The total number of claims is not alarming for the study period, nor is the
average amount of payout for claims lost. Specific claim categories are similar to those of the Kappeler et al.
study (1993), but the average amount of losses paid and losing percentages were less than those in their study.
These seven categories represent incidents that officers confront with regularity and that pose risk
management strategies for agency administrators. Further, administrators need to work toward reducing the
number of claims filed by their own personnel for allegations of sexual harassment and discrimination.

In a comprehensive study conducted by Vaughn et al. (2001), 849 Texas police chiefs were surveyed about
their experience with civil litigation. The chiefs reported that the fear of lawsuits made it more difficult for
them or their officers to do their job (53 percent). During the three years prior to the survey, 36 percent of the
chiefs revealed that they had been sued by a citizen and 78 percent indicated they had prevailed in the lawsuit.
The most prevalent liability issues filed against the departments were for excessive force (22 percent), false
arrest/imprisonment (19 percent), and unlawful searches and seizures (10 percent). The chiefs revealed that
they had lost 22 percent of the cases filed by individual citizens and 41 percent of the cases brought by their
own employees. Of the cases in which monetary damages were awarded against the department, 82 percent
involved settlements and 18 percent resulted from a jury or court verdict. In all, the cases settled for $8,810,400
(159 cases), averaging $55,411 per settlement. Court or jury verdicts resulting in monetary awards totaled
$3,335,409, and averaged $98,100.

Additional scholarly research has examined several emerging trends in police civil liability. Using
LexisNexis and Westlaw searches of equal protection § 1983 claims, Blackwell and Vaughn (2003) reported on
civil litigation by plaintiffs claiming that the police violated their Fourteenth Amendment rights when they

17

improperly responded to a domestic violence call. Case analysis revealed that when the police treat a domestic
violence call or arrest less seriously than other violent assaults, delay in their response to such a call, or
discriminate in arrests based on gender issues, the likelihood of liability increases. Courts are seemingly more
inclined to find in favor of a plaintiff when they can illustrate that the police failed to provide adequate
response in domestic violence calls. They advise that the police need further training and education on family
abuse in order to become more responsive to victims of domestic violence.

Cuing on the concern that civil liability poses for police officers, several studies have been designed to
survey police officers’ perceptions regarding civil liability. Hughes (2001) randomly selected community and
beat officers from the Cincinnati, Ohio, Police Department in order to compare their perceptions regarding the
potential of incurring a civil lawsuit. A total of 147 officers (29 community officers and 118 beat officers)
responded to the self- administered Likert-type survey, which included 11 items. Overall, respondents held
negative attitudes regarding the effectiveness of civil sanctions against the police. While a majority of the
respondent officers had never been sued in their capacity as a law enforcement officer, they reported that, as
seniority increases, the more likely it is that they will be named in a lawsuit. Hughes reported that most
officers believed they should be exposed to civil accountability, and that, as length of service increases, the
perception that civil suits are a barrier to effective law enforcement decreases. A majority of officers believed
that the threat of civil litigation does not prevent an officer from violating a citizen’s constitutional rights
during an arrest, that civil liability is an unfortunate inevitability of the job, and that it is not a significant
method for controlling officer behavior. Differences were not, however, based on gender, ethnicity, or
educational background. Female and African- American officers tended to view civil liability as less of a
barrier in performing their duties. Further, the more highly educated (college degree or higher) and more
experienced the officer, the more favorable the perception was toward civil litigation. A majority (68 percent)
of officers agreed that good recruitment, selection practices, and training are viable methods for protecting the
department from a lawsuit. Only a slight majority (50 percent) believed that a strong disciplinary system
reduced the department’s liability.

A second study focused on a comparison of police and correctional officer attitudes toward civil liability.
Hall et al. (2003) distributed a 22- item survey to deputies and detention officers of a county in a southern state
and all but one municipality within the same county. Of 975 surveys distributed, 607 were completed. Police
officers accounted for 500 of the surveys and 107 were completed by detention officers.

Using logistic regression analyses, the researchers’ findings were similar to those of previous studies
(Hughes, 2001; Garrison, 1995; Scogin & Brodsky, 1991). Police respondents were more inclined to know a peer
who had been sued. Police responded more frequently than detention officers that a supervisor’s order placed
them at risk of incurring a civil lawsuit. Both police and detention officers were more likely to agree (62
percent) that they should be subject to civil liability for violating the civil rights of a citizen or detainee. A
majority of both groups (60 percent) reported that they had received adequate training pertaining to civil
liability and 48 percent agreed that the threat of civil liability deters officer misconduct. The researchers found
that the higher the level of education the officer had completed, and the longer he or she had been employed,
significantly influenced their favorable response to survey items. The researchers concluded that only a
minority of officers believed that civil litigation hindered their ability to perform their duties and that future
research should be directed toward identifying the varying influences that affect their perception regarding
civil liability.

Novak et al. (2003) examined whether police officers’ perceptions, years of experience, and aggressive
policing styles were associated with civil liability. An 88- item survey was administered to officers from the
Cincinnati, Ohio, Police Department. Officers were also observed in the field as they responded to various calls
for service over a 13- month period. The researchers measured three primary propositions: (1) officer beliefs
about civil liability in deterring unlawful police behaviors; (2) officer beliefs about liability and a willingness to
engage in lawful behaviors; and (3) liability concerns have no effect on officer behavior. As in previous studies,
officers agreed that they should be subject to civil actions but that knowing they may be sued would not, or
had not, deterred their aggressive behaviors in making a lawful arrest. A majority of the officers also agreed
that being sued is “just part of the job” and that it would not influence their behavior significantly. The
researchers suggest that more research be conducted to compare attitudes of officers before and after a civil
liability incident to measure what factors may influence officer behaviors.

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Using a content analysis of 634 newspaper articles from the New York Times, Chicago Sun-Times, and the
Los Angeles Times from 1993 to 2003, Archbold et al. (2006) studied various police liability trends. The purpose
of the study was to assist in filling some of the void in the civil liability literature. The researchers found that
racial and gender discrimination comprised 30 percent of all lawsuits filed against police agencies and
accounted for the top two reasons lawsuits were filed in all three cities. More than 50 percent of these lawsuits
were filed by police personnel, compared to 47 percent filed by citizens. A majority of the lawsuits (69 percent)
were settled out of court and eight percent of the cases were dismissed by the courts. Only gender
discrimination lawsuits filed by police personnel resulted in a jury verdict. Of these verdicts the plaintiff
prevailed in 63 percent of the gender discrimination lawsuits and the defendants prevailed in 37 percent. There
were several multimillion dollar settlements awarded in the racial discrimination lawsuits. In addition, the
costs associated with lawsuits based on racial discrimination ranged from $250,000 to $512,000. The costs
associated with gender discrimination lawsuits ranged from $4,000 to $1,500,000.

The researchers further found that 27 percent of all lawsuits were filed by police personnel while those
remaining were filed by citizens. Lawsuits filed by police personnel comprised the following discrimination
topics: gender discrimination, age discrimination, religion, disability, sexual orientation, and sexual
harassment. Police personnel also filed lawsuits claiming unfair administrative practices, which included
claims of unwarranted discipline and demotion, wrongful termination, unfair hiring, promotion, and
retirement practices. These claims accounted for 23 percent of allegations asserted by police personnel. In total,
citizens were more likely to prevail in the lawsuit (71 percent) compared to 29 percent for police personnel
plain-tiffs. Note, however, that police agencies were slightly more likely to settle a lawsuit with police
personnel (54 percent) versus 46 percent with citizens. The findings of the study revealed that police personnel
did not routinely face disciplinary actions by administrators in citizen lawsuits and affirmed that their findings
concur with the Vaughn, Cooper, and del Carmen study (2001). They also noted that only a few agencies
attempted to make changes in policies, procedures, and police training in an attempt to reduce litigation.

In a follow- up article, Archbold et al. (2007) reported the analysis of six common categories of litigation
claims made against police officers: physical abuse/excessive force/assault, false arrest, negligent actions/failure
to act, wrongful death, denial of civil rights, and illegal search and seizure. Just fewer than 40 percent of these
categories resulted in settlements, with 51 percent of the false arrest actions settling out of court and 38 percent
of the excessive force claims doing the same. Payout information was only available for assessment in 23
percent of the total claims. Physical abuse and excessive force settlement claims averaged $2.5 million in
payouts per lawsuit and about 43 percent of these claims resulted in a $1 million payout or more. More than 78
percent of the negligent actions of officers or failure to respond claims accounted for payouts of $1 million or
more.

Schwartz (2014) conducted the largest national published study to date which examined the settlements,
judgments, litigation payouts, and whether law enforcement officers were financially responsible in § 1983
civil cases alleging misconduct during 2006 to 2011. Specifically, the study researched the total number of cases
resolved during the reporting period, the total amount paid to the plaintiff, the number of occasions officers
contributed to the payout, the amount of punitive damages assessed against the officer, and the number of
instances when an officer was required to pay the punitive damages. Schwartz requested information from 70
large and 70 medium and small law enforcement agencies. Of these agencies, 44 large (900- plus sworn officers)
and 37 medium to small (one to 747 sworn officers) police agencies responded to the request. Of these 81 law
enforcement agencies, 50 were municipalities, 16 were county sheriff departments, 11 were state police
agencies, and four were county police agencies. The number of sworn police officers employed at these
agencies ranged from one (Waterloo, NE) to 36,000 (New York City). The large agencies represent 20 percent of
all sworn police officers in the United States and 12 of the largest 20 agencies in the country.

Schwartz collected the litigation data by sending letters, conducting phone calls and interviews, and through
email exchanges with risk managers, city attorneys, city council staff, city clerk employees, plaintiff’s
attorneys, and others. Schwartz further reviewed minutes of city council meetings and also reviewed additional
case information on Westlaw, Bloomberg Law, and specific state court websites. Limitations of the study
included the following: some of the information collected may be inaccurate and maybe incomplete; it may not
include all judgments and settlements of the responding agency; some of the cases may not be supported by
official documents but were provided based on the person’s best recollection of the case; and the case data were

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not compared against all cases filed in which summary judgment was granted or the case was won at trial by
the reporting agency. Further, litigation data did not distinguish between the officer and an administrator as
being named in the lawsuit.

Common claims of the cases included excessive force, search and seizure, false arrest, assault of arrestee,
sexual assault of arrestee, and planting evidence. Table 1.1 illustrates some of the outcomes of the 44 large law
enforcement agencies (Schwartz granted permission to report the data findings).

Table 1.1 reveals that a total of 9,225 cases were resolved in favor of the plaintiff either through settlement or
judgment. The total payout in compensatory damages amounted to $735,270,772 for an average of $18,381,769
per agency. This must be read with caution as the New York Police Department’s award amount skewed the
payout data and accounted for 47 percent of the total awards. The median payout for the plaintiffs in the New
York cases was $20,000; in 26 cases plaintiffs received over $1 million, and in 595 cases plaintiffs secured more
than $100,000 in each award. Excluding the New York City Police Department, 31 percent of the agencies paid
from $1 to $19 million to prevailing plaintiffs, and 48 percent of the agencies paid from $1 to $9 million to the
prevailing plaintiffs. Only 4 percent of the agencies paid out from $20 to over $50 million. Six of these agencies
sustained between 105 and 300- plus cases which were resolved by financial payout. Officers contributed
financially to settlements and judgments in just 0.02 percent of the 9,225 civil rights actions resolved in a
plaintiff’s favor.

Only nine of 40 (22 percent) agencies were assessed punitive damages and the New York Police Department
accounted for 72 percent of these awards. Punitive damages were assessed in a total of 20 cases and the average
award was $199,595. Only one officer was required to pay punitive damages, amounting to $300, but was not
actually required to pay.

Table 1.2 shows the payouts in the medium and smaller law enforcement agencies. Of the 37 agencies, only
21 provided payout amount data.

Table 1.1 Payout Outcomes of Large Agencies

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Table 1.2 shows that a total of 166 cases were resolved through either settlement or judgment, with a total
award payout of $9,387,611. The average amount paid out to the plaintiff equaled $447,029. Of the reporting
agencies, three paid out from $1 to $2.5 million (14 percent) to the plaintiff. The average number of cases where
an award was granted equaled eight cases per agency. The Fort Wayne, IN, Police Department incurred the
most cases in which they were assessed payment (76) but paid less than the Hemet, CA, and Yellowstone, MT,
sheriff departments who paid judgments in six and seven cases respectively. No officer was required to
contribute to the payout and no punitive damages were assessed against any officer in these cases.

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Although the research does not report official litigation documents, no other empirical study published to
date has provided as much in- depth longitudinal litigation data— examining a broad group of law
enforcement agencies, diverse in size, location, and agency type— as the Schwartz study. These figures show
important trends of litigation amongst 81 large, medium, and small law enforcement agencies across the nation
over five years. Over the period there were a total of 9,408 reported cases in which a financial payout was
awarded to the plaintiff, averaging about 1,882 judgments determined annually.

Table 1.2 Payout Outcomes of Small and Medium Size Agencies

Agency Total Award
Amount

# of Cases Plaintiffs
Paid

Amount Officers Required to
Pay

Contra Costa CO. Sheriff’s Dept
(CA)

$304,100 9 0

Cob CO. PD (GA) $493,412 11 0
Manatee CO. Sheriff’s Office $216,000 11 0

Fort Wayne PD (IN) $1,017,761 76 0
Summit CO. Sheriff’s Office (OH) $867,500 3 0

New Hampshire St. Police $623,227 9 0
Boise, ID PD $61,924 4 0

Springfield, IL PD $146,957 5 0
Overland Park, KS PD $51,000 3 0

Waco, TX PD $14,806 3 0
Naperville, IL PD $165,750 0 0

Pueblo CO. Sheriff’s Office (CO.) $186,000 7 0
Schaumburg, IL PD $125,000 1 0
Avondale, AZ PD $178,322 4 0
Pocatello, ID PD $48,700 2 0
Hemet, CA PD $2,572,500 6 0

Yellowstone CO. Sheriff’s Office
(MT)

$1,632,100 7 0

Phelps CO. Sheriff’s Office (Ml) $25,000 1 0
Evansville, Wl PD $337,500 1 0
Fruitland, ID PD $100,000 2 0

Jackson Twp. PD (OH) $220,051 1 0
Total $9,387,611 166 0

The combined total payout of the large and the medium to small agencies amounted to $744,658,383 and the
awarding of the punitive damages assessed against the larger agencies amounted to almost $4 million during
the reporting period. A review of these figures reveals that the risk of incurring a § 1983 lawsuit continues to
be significantly high, the judgments include high awards granted to plaintiffs, but the awarding of punitive
damages that are high in dollar terms is rare—in just 0.002 percent of cases. Officers and/or administrators
involved in these cases are indemnified in all but 0.02 percent of the cases. The agency absorbs the costs for the
officer’s defense, payout for the financial judgment, and for the punitive damages, which were rarely assessed
against the officer. Schwartz concluded that, despite the frequency of the litigation and the high payouts, it
appears that most governmental agencies are not taking aggressive actions to investigate and discipline their
officers and need to take more effective steps in managing their law enforcement departments.

Other assessments of liability payouts of large law enforcement agencies performed during the Schwartz
study period align with her research findings. For example, the Rampart precinct scandal amounted to a
settlement of about $90 million for involved officers’ misconduct (Muhammad, 2009). The scandal involved
police corruption by numerous officers, in several incidents, who violated the constitutional rights of 100
victims. Without these associated incidents, settlements within the city perhaps would have been substantially
less.

Payouts in New York City also involved a number of incidents with high payouts (Long & Peltz, 2010). For

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example, more than $7 million was paid out in one officer- involved shooting and $10 million paid in another.
Plaintiffs were awarded $33 million in a class action suit against New York City on behalf of thousands of New
Yorkers who were arrested and illegally strip- searched. Between July 1999 and October 2007 it is estimated
that about 100,000 pretrial detainees were illegally searched when they first arrived and/or when they were
coming back from court appearances. Some detainees were strip- searched multiple times. Two female
plaintiffs were also forced to undergo gynecological examinations. The victims faced misdemeanor charges,
many no more serious than jumping turnstiles, failing to pay child support, shoplifting, and trespassing. Other
cases involved multimillion dollar payouts for administrative liability and over $30 million was paid out for car
accidents where officers were driving. The City of Detroit, MI, paid out $19.1 million in several cases including
(Morning Sun News, 2010):

$6.7 million paid on 50 suits for violations of constitutional rights
$2.4 million paid on two suits for wrongful deaths other than shootings
$1.9 million paid on 49 suits for assault and battery, false arrest, and imprisonment

The City of Chicago settled a lawsuit for $19.8 million involving four arrestees alleging that former police
commander Jon Burge supervised their torture in order to gain confessions of a murder. The torture alleged by
the lawsuit included beatings and electric shocks (Huffington Post, 2010). Several incidents in Denver, Detroit,
Minneapolis, Philadelphia, and Portland represent large settlements for an officer- involved shooting
(McKinney & Mitchell, 2011; Warner, 2011; News, 2010; Bernstein, 2010; Washington, 2011). For example, the
City of Portland, Oregon, paid out over $1.3 million for three officer- involved shootings. The City of Detroit
paid $2.2 million and the City of Denver paid $1.34 million for two officer- involved shootings. The City of
Philadelphia paid out over $2 million to settle three police shooting cases.

A former Minneapolis, Minnesota, officer settled a lawsuit for $4.5 million against the city for being shot by
a fellow police officer while working undercover. Officer Duy Ngo was performing undercover gang
surveillance when he was shot in his car. He radioed for help and dragged himself into the street, waving his
arms at the officers who responded. Instead of helping him, the two officers mistook Ngo for a suspect and shot
him with a semi- automatic rifle. Ngo received six bullet wounds from the shooting. It was the largest
settlement ever involving a Minneapolis police officer.

These trends provide insights into the continuing troubling patterns of settling cases out of court in select
cities, as reported in various media outlets. Reported settlement types ranged from false arrest, excessive force,
unreasonable/illegal searches and seizures, sexual misconduct, sexual harassment, sexual misconduct, police
brutality, accidents, and other actions of police misconduct.

Detailed national data are not systematically collected, therefore it is difficult to identify definitively the
trends in police civil litigation. The Ross and Bodapoti study, however, provides a more detailed analysis of the
trends in common types of civil liability claims, costs paid out, and prevailing trends in one state than that
provided in previous studies. The Schwartz study provides useful data which shows the breadth and scope of
payouts awarded to plaintiffs over a broad- base number of diverse law enforcement agencies nationwide and
underscores the fact that an officer or administrator is almost always indemnified. Other studies discussed
illustrate the concern of police officers about civil litigation while performing their sworn duties. These studies
are helpful in providing data regarding what shapes officer behavior in light of potential civil litigation. What
appears to be clear and continues to be shown, as illustrated by the studies presented, is that police have been
and continue to be targets of litigation. Based on the nature of police work, it is also evident that the trend will
carry on and administrators must continue to work with their officers to make justifiable field decisions and
work to hold officers accountable for their decisions, which can assist in reducing the frequency of civil
litigation exposure.

Trends in Correctional Litigation

The United States Supreme Court established in Cooper v. Pate (1964) that state prisoners could bring lawsuits
against correctional officials under Title 42 United States Code § 1983. Since 1964, prisoner litigation has
flooded state and federal courts. A limited number of studies have examined the prisoner litigation trends.

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Turner (1979) examined 664 cases litigated between 1960 and 1977 in the federal districts of Virginia, Vermont,
and the Northern and Eastern Districts of California. He found that a high proportion of these cases were filed
in forma pauperis, and that a significant percentage (68 percent) of prisoner cases were disposed of at the
pleading stage. The most prevalent issues raised were those of medical care, property loss or damage, and
access to the courts.

McCoy (1981) analyzed 527 court records of the U.S. District Court for the Southern District of Ohio from
1975 to 1980. She found that the change in the court’s philosophy regarding the acceptance of prisoner lawsuits
resulted in an increase in § 1983 suits filed by prisoners from 11 in 1975 to 87 in 1979. The data, however, also
revealed a marked decrease in both § 1983 suits and habeas corpus petitions filed during 1979 and 1980. A high
proportion of cases sought monetary damages and a significant number were dismissed. Thomas et al. (1985)
compared the filings between habeas corpus petitions and § 1983 lawsuits in the Northern District of Illinois
from 1977 to 1984. They reported that prisoners filing civil rights complaints were more likely to be “repeat
filers,” while habeas corpus suits tended to be filed by “one- shotters.” In a second study, Thomas et al. (1986)
compared state and federal prisoner civil lawsuits to the general population’s filing of civil rights complaints.
They showed a slow but steady increase in prisoner filings from 1960 to 1984. This finding, however, failed to
show strong evidence to suggest that prisoners are more likely than civilians to take complaints to court. They
reported that, as the national prison population increased, prisoners actually filed proportionately fewer
lawsuits. In 1964 one of every 100 prisoners filed two lawsuits. The ratio reached its peak in 1981, when seven
suits per 100 prisoners were filed. By 1984 approximately one prisoner in 20 filed a lawsuit, the lowest ratio
since 1969.

Champion (1988) performed a content analysis of state and federal prisoner litigation trends for six southern
states to determine the number and nature of civil filings by prisoners. State records were reviewed for five
periods: 1975, 1978, 1981, 1984, and 1987. The study revealed a decline in the filing of habeas corpus petitions
and a decrease in the number of filings under the Federal Tort Claims Act, but an increase in § 1983 lawsuits
filed by state prisoners. His findings were consistent with other studies on the topic (Thomas et al., 1986;
Singer, 1980; Turner, 1979).

Hansen and Daley (1995) researched 2,700 § 1983 lawsuits that were filed in nine states during 1992. They
found that the aggregate profile of § 1983 prisoner litigation most frequently involved issues of physical
security, medical treatment, and due process violations. The largest number of § 1983 lawsuits named
correctional officers (26 percent), followed by administrators (22 percent), medical personnel (nine percent),
elected officials (seven percent), and arresting officers (six percent) as defendants. The overwhelming majority
(94 percent) of the prevailing prisoners won little or nothing in terms of actual dollars. Virtually all prisoners
acted as their own attorney (96 percent).

Using a content analysis, Ross (1997a) conducted a 25- year assessment of 3,205 published local jail and state
prison § 1983 lawsuits. In 1970 the national prisoner population was 176,391 and 2,030 lawsuits were filed (1.2
percent of the population filing). By 1994 the prisoner population was 992,000 and 36,318 lawsuits were filed
(3.7 percent of the population filing). For the 25- year period, 3.6 percent of the prisoner population filed § 1983
lawsuits. During the study period, state correctional officials won 57 percent of the cases.

The Ross study also revealed several common types of cases filed by prisoners. The more prevalent issues
included medical care, access to the courts, discipline, administrative liability, conditions of confinement,
failure to protect, use of force, and classification. In 92 percent of the cases the prisoner filed in forma pauperis,
without legal counsel. When a prisoner prevailed (43 percent), equitable relief was awarded in 87 percent of the
cases. Equitable relief is a non- monetary judgment whereby the court, through declaratory relief, declares to
the defendant that a regulation is unconstitutional. A court, through injunctive relief, may also prohibit
practices of the defendant by requiring certain measures to be taken or practices to be instituted to avoid
further violations of the Constitution. Monetary damages were awarded in 13 percent of the cases and
averaged $43,488 per case, while punitive damages averaged $30,667 per case. The total compensatory award
per litigated topic ranged from $4,500 to $5.2 million during the study period. Punitive damages ranged from
$12,345 to $414,000 per litigated subject matter. Nominal damages of $1 were awarded to prisoners on an
infrequent basis. Cases involving failure to protect, medical care, administrative liability, prisoner searches,
conditions of confinement, and use of force all amounted to significant compensatory and punitive damages, as
well as attorney’s fees when a prisoner prevailed.

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Ross (1997b) also reported that officials in jails/detention facilities were less likely to prevail in a civil lawsuit
than their prison counterparts. Jail officials lost 56 percent of the detainee litigation. Study results indicated
that jail inmates were more likely to prevail in cases involving administrative liability (63 percent), such as
hiring and training of personnel, supervision of officers, deficient or non- existent policies and procedures,
conditions of confinement (62 percent), deficient facility (60 percent, i.e., overcrowding and defective
buildings), medical care (60 percent), mental health (58 percent), use of force (55 percent), and access to the
courts (52 percent).

As part of the MMRMA study discussed previously, Ross and Page (2003) examined claims stemming
specifically from jail detainee cases in 57 jails/sheriff departments in Michigan. These claims represented 11
percent of the total claims studied and covered 1992 to 1999. The claims filed named detention officers in 26
percent, administrators in 22 percent, medical personnel in nine percent, and elected officials in seven percent
of the cases examined. The overall costs for the study period amounted to slightly more than $7 million and
averaged about 36 claims per year.

While the frequency of claims reported is small in number, there are several categories worth noting in
which large payouts were common. The following claims were more frequent in occurrence than other claims
and show the average payout when a loss was incurred, and the percentage of cases in which the plaintiff
prevailed: attempted suicide ($271,000/65 percent); suicide ($175,000/60 percent); delay/denial of medical care
($158,000/44 percent); wrongful death ($125,000/88 percent); excessive force ($120,000/18 percent); conditions of
the facility ($45,000/45 percent); administrative liability for claims of sexual assault, sexual
harassment/discrimination ($24,000/25 percent); and failure to protect claims ($15,000/33 percent).

Like the findings in the police study, larger jails (number of detention officers more than 100) accounted for
more claims, losses, and payouts. When an attorney was used to litigate the case in court, the agency was more
likely to prevail— about 60 percent of the time overall.

Table 1.3 illustrates 37 years’ worth of prisoner litigation filing trends as reported by the Administrative
Office of the Courts (AOC, 2015). Filing trends are also compared to jail and prisoner population trends
(Cohen, 1991; Gillard & Beck, 1996; Hester, 1987; Kaeble & Glaze, 2016; Kalish, 1981). As shown in Table 1.3,
the jail and prisoner population has increased by 260 percent from 1978 and until 1995, and § 1983 lawsuits
filed by prisoner plaintiffs increased by about 250 percent. Since the late 1970s, § 1983 civil actions have
become the method most often used by state prisoners and jail detainees filing legal actions against
correctional officials. In 1995 these figures reveal that § 1983 claims filed by prisoners were three times as high
as the number of habeas corpus petitions filed by prisoners. From 1995 to 2015 the number of § 1983 filings
began to decline, with only negligible increases in 2004, although prisoner populations continued to increase.
Concomitantly, habeas corpus petitions have steadily increased during this period and since 2000 they closely
match the number of § 1983 filings through 2011. After 1995, § 1983 prisoner filings have decreased by
approximately 51 percent, while habeas corpus filings have increased by about 60 percent. Since 2000 the
prisoners filing a § 1983 lawsuit and/or a habeas corpus petition average about 43,743 annually, which has
collectively declined from more than 53,000 in 1995, a decrease of about 13 percent. Further, the figures show
that about three percent of the prisoner population commonly files a lawsuit and habeas corpus petitions
account for about 11 percent of all actions filed annually in the federal courts (AOC, 2015).

Table 1.3 Trends in Correction Litigation

25

These trends appear to be influenced by the Prison Litigation Reform Act (PLRA) passed by Congress in 1996
and several United States Supreme Court decisions (Schlanger, 2012). Since 2000, prisoner filings of lawsuits
have declined by 34 percent, habeas corpus petitions filed have declined by about 21 percent, while the prisoner
population has increased by 39 percent. In part, the Act was legislated by Congress to curb frivolous lawsuits
filed by prisoners. The Act established mandatory filing fees, restrictions on filing successive petitions, and
requirements for exhausting administrative remedies before the filing of a legal action. It also increased the
ability of the courts to immediately dismiss any lawsuit that is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.
Schlanger (2012) reported that the enforcement of the PLRA has produced the following outcomes: that more
cases have been rejected by the courts due to prisoners failing to follow the provisions of the PLRA; that many
lawsuits fail to allege an actual physical injury; and the PLRA is making it more difficult for a prisoner to file a
claim and to prevail on a claim (more discussion on the PLRA is presented in Chapter 11).

Summary

As the above discussion indicates, criminal justice personnel and agencies continue to be targets of civil
liability. While the number of citizen and prisoner filings is high, officials often prevail in these actions.
Research also reveals that a majority of lawsuits are settled out of court, and it appears that this trend is
increasing. Civil litigation is costly, but many of the judgments have been instrumental in providing more
resources with which to perform daily duties, increasing personnel training, and assisting in developing more
efficient policies and procedures with which to guide officer decision- making.

Research on liability issues shows the trends and impact that lawsuits have on criminal justice agencies in
terms of money paid out and operational and policy changes. In response, scholarly research has documented
the changes in the nature of civil litigation and the differing perceptions of civil liability between officers and
supervisors. While education affects an officer’s perception regarding civil liability, most officers report that
such litigation is a barrier to effective law enforcement. Research on civil liability helps to pinpoint areas in
which lawsuits are more likely to be filed. Officers and administrators should endeavor to work toward
proactive measures to minimize lawsuits in these subject areas. Research suggests that quality efforts made in
recruitment, training, workplace policies, implementing an early warning and strong disciplinary system, and
maintaining a liability risk management program can assist in reducing departmental liability.

Civil lawsuits can be bothersome and stressful, and the outcome can be unpredictable. Administrators must

26

remain committed to providing personnel with training, guidance, and legal updates to better understand how
to perform their sworn duties. Officers must remain committed to performing their duties within the
framework of the law. Maintaining this commitment can assist in defending the next legal action the officer or
department faces.

27

Bibliography

Administrative Office of the United States Courts, 1978–2015 (2015). Table C- 4 annual report to the director
(statistics division) civil and trial statistics: 12- month periods. Washington, DC.
American Civil Liberties Union of New Jersey (2010, July 7). Newark police misconduct costs taxpayers. ACLU-
nj.org.
Americans for Effective Law Enforcement (1980). Lawsuits against police skyrocket. San Francisco, CA:
Americans for Effective Law Enforcement.
Americans for Effective Law Enforcement (1982). Impact. San Francisco, CA: Americans for Effective Law
Enforcement.
Archbold, C.A., Lytle, D., Weatherall, C., Romero, A. & Baumann, C. (2006). Lawsuits involving the police: a
content analysis of newspaper accounts. Policing: An International Journal of Police Strategies & Management,
29, 625–642.
Archbold, C.A., Lytle, D.J., Mannis, J. & Bergeron, L. (2007). Police liability incidents that result in litigation: an
examination of the causes and costs. Law Enforcement Executive Forum, 7, 61–74.
Ashenfelter, D. & Ball, Z. (1990, July 16). City, not cops, pays for brutality. Detroit Free Press, 16 (1A) 8A–9A.
Associated Press (2005, June 11). $1 Million Awarded Against San Jose PD. 2D.
Barrineau, H.E. (1987). Civil liability in criminal justice. Cincinnati, OH: Pilgrimage Press.
Barrineau, H.E. (1994). Civil liability in criminal justice (2nd ed.). Cincinnati, OH: Anderson Publishing Co.
Barrineau, H.E. & Dillingham, S.D. (1983). Section 1983 litigation: an effective remedy to police misconduct or
an insidious federalism? Southern Journal of Criminal Justice, 8, 126–145.
Bernstein, M. (2010, December 10). Claims against Portland police officers cost city millions. The Oregonian,
Oregonlive.com.
Blackwell, B.S. & Vaughn, M.S. (2003) Police civil liability for inappropriate response to domestic assault
victims. Journal of Criminal Justice, 31, 129–146.
Breslin, F.F., Taylor, K.R. & Brodsky, S.L. (1986). Development of litigaphobia scale: Measurement of excessive
fear of litigation. Psychological Reports, 58, 547–550.
Bureau of Justice Statistics (1995). Sourcebook of criminal justice statistics: 1995. Washington, DC: U.S.
Department of Justice.
Bureau of Justice Statistics (1999). Federal tort trials and verdicts: 1996–97. Washington, DC: U.S. Department of
Justice.
Bureau of Justice Statistics (2009). Civil bench and jury trials in State courts, 2005. Washington D.C., U.S.
Department of Justice.
del Carmen, R.V. (1987). Criminal Procedure for Law Enforcement. Monterey, CA: Brooks/Cole.
del Carmen, R.V. (1991). Civil liabilities in American policing: A text for law enforcement personnel. Monterey,
CA: Brady.
del Carmen, R.V. (1993) Civil liabilities in law enforcement: Where do we go from here? American Journal of
Police, 12, 87–99.
del Carmen, R.V., Smith, M.R., Dunham, R.G. & Alpert, G.P. (1997). Police civil liability and the law. Critical
issues in policing. In R.G. Dunham & G.P. Alpert (Eds.), Critical issues in policing: Contemporary readings.
Prospect Heights, IL: Waveland Press.
Champion, D.J. (1988). Some recent trends in civil liability by federal and state prison inmates. Federal
Probation, 2, 43–47.
Chiabi, D.K. (1996). Police Civil Liability: An Analysis of Section 1983 Actions in the Eastern and Southern
Districts of New York. American Journal of Criminal Justice, 21, 83–104.
Christopher Commission report (1991). Independent Commission on the Los Angeles Police Department, Los
Angeles, CA.
Cohen, F. (2006). Custodial suicide: yet another look. Jail Suicide/Mental Health Update, 15, 1–11.
Cohen, R.L. (1991, January). Prisoners in 1990. Bureau of Justice Statistics. Washington, DC: U.S. Department
of Justice.

28

Cohen, T.H. (2005). Punitive damages awards in large counties: 2001. Bureau of Justice Statistics Bulletin.
Washington, DC: U.S. Department of Justice.
Cohen, T.H. & Harbacek, K. (2011, March). Punitive damages awards in state courts: 2005. Bureau of Justice
Statistics. Washington, DC: U.S. Department of Justice.
The Columbus Dispatch (1999, October 22). The Lawsuit. 3A.
Cooper, T.W. & del Carmen, R.V. (2001). Assessing legal liabilities in law enforcement: Police chief’s views.
Crime and Delinquency, 47, 3–27.
DeFao, J. (2003, February 19). City of Oakland Settles Civil Rights Case. San Francisco Chronicle, 1D.
Department of Justice (1997a, April 16). Consent Decree with the Pittsburgh, PA, Police Department. Available
at: www.usdoj.gov/crt/split/documents/pittssa.htm.
Department of Justice (1997b, September 3). Consent Decree with the Steubenville, OH, Police Department.
Available at: www.usdoj.gov/crt/split/documents/steubensa.htm.
Detroit News (2011, May 27). Cop misdeeds lead to big payouts.
Franklin, C.J. (1993). The police officer’s guide to civil liability. Springfield, IL: Charles C. Thomas.
Garcia, G.X. (2000, July 17). Davidian decision is not the end. USA Today, 1A.
Garrison, A.H. (1995). Law Enforcement Civil Liability Under Federal Law and Attitudes on Civil Liability: A
Survey of University, Municipal and State Police Officers. Police Studies, 18, 19–37.
Gillard, D.K. & Beck, A.J. (1996, August). Prison and jail inmates, 1995. Bureau of Justice Statistics.
Washington, DC: U.S. Department of Justice.
Guerino, P., Harrison, P.M. & Sable W.J. (2010, December). Prisoners in 2010. Bureau of Justice Statistics.
Washington, DC: U.S. Department of Justice.
Hall, D.E., Ventura, L.A., Lee, Y.H. & Lambert, E. (2003). Suing cops and corrections officers: Officers’ attitudes
and experiences about civil liability. Policing: An International Journal of Police Strategies & Management, 26,
529–547.
Hansen, R.A. & Daley, H.K. (1995). Challenging the conditions of prisons and jails: A report on Section 1983
litigation. Bureau of Justice Statistics. Washington, DC: U.S. Department of Justice.
Hester, T. (1987, December). Corrections populations in the United States, 1985. Bureau of Justice Statistics.
Washington, DC: U.S. Department of Justice.
Huffington Post, April 5, 2016. Chicago settles lawsuit brought by 2 men beaten allegedly by police.
www.huffingtonpost.com/2011/03/25.
Hughes, T. (2001). Police officers and civil liability: the ties that bind? Policing: An International Journal of
Police Strategies & Management, 24, 240–262.
International Association of Chiefs of Police (1976). Survey of police misconduct litigation: 1967–1976.
Washington, DC: IACP.
Josar, D. (1998, March 9). Cops cost Detroit millions in lawsuits. Detroit News, 1A.
Kaeble, D. & Glaze, L. (2016, December). Correctional populations in the United States, 2015. Bureau of Justice
Statistics. Washington, DC: U.S. Department of Justice.
Kalish, C.B. (1981, May). Prisoners in 1980. Bureau of Justice Statistics. Washington, DC: U.S. Department of
Justice.
Kappeler, V.E. (1997). Critical issues in police civil liability (2nd ed.). Prospect Heights, IL: Waveland Press, Inc.
Kappeler, V.E. & del Carmen, R.V. (1990a). Police civil liability for failure to arrest intoxicated drivers. Journal
of Criminal Justice, 18, 117–131.
Kappeler, V.E. & del Carmen, R.V (1990b). Legal issues in police negligent operation of emergency vehicles.
Journal of Police Science and Administration, 17, 63–175.
Kappeler, V.E., Vaughn, M.S. & del Carmen, R.V. (1991). Death in detention: an analysis of police liability for
negligent failure to prevent suicide. Journal of Criminal Justice, 19, 381–393.
Kappeler, V.E., Kappeler, S.F. & del Carmen, R.V. (1993). A content analysis of police civil liability cases:
Decisions of the Federal District Courts, 1978–1990. Journal of Criminal Justice, 21, 325–337.
Klotter, J.C. (1999). Legal guide for the police: Constitutional issues, 5th, ed. Cincinnati, OH, Anderson
Publishing.
Klotter, J.C., Walker, J.T. & Hemmens, C. (2005). Legal guide for police: Constitutional issues (7th ed.).
Cincinnati, OH: Anderson Publishing Co.

29

Koren, E.I. (1994). Status report: State prisons and the courts— January 1, 1994. The National Prison Project
Journal, 9, 9–12.
KTVU Channel 2 (2011, November 4). Oakland paying out extraordinary police abuse settlements: A review of
California Public Records Act, KTVU.com.
Kyckelhahn, T. & Cohen, T.H. (2008). Civil rights in U.S. District Courts, 1990–2006. Bureau of Justice
Statistics. Washington, DC: U.S. Department of Justice.
Lanton, L. & Cohen, T.H. (2008). Civil bench trials in state courts, 2005. Bureau of Justice Statistics.
Washington, DC: U.S. Department of Justice.
Litras M.F. & DeFrances, C.J. (1999). Three out of four tort cases settled out of court. Bureau of Justice
Statistics. Washington, DC: U.S. Department of Justice.
Littlejohn, E.J. (1981). Civil liability and the police officer: The need for new deterrents to police misconduct.
University of Detroit Journal of Law, 58, 365–370.
Long, C. & Peltz, J. (2010, October 10). AP Investigation: Nearly $1B in NYC police payouts. Huffington Post,
Huffington Post.com
Los Angeles Times (2004, December 26). LA to pay $650,000 to settle two lawsuits. 1D.
MacManus, S.A. (1997). Litigation: A real budget buster for many U.S. municipalities. Government Finance
Review, 10, 27–31.
McCoy, C. (1981). The impact of Section 1983 litigation on policymaking in corrections. Federal Probation, 45,
17–23.
McCoy, C. (1987). Police legal liability is not a crisis, 99 chiefs say. Crime Control Digest, 21, 1.
McGreevy, P. (2000, January 11). Lawsuit settlements by City of LA increased 28% in ’99. Los Angeles Times,
2B.
McKinney, M. & Mitchell, C. (2011, July 31). Costs of Minneapolis- police payouts could hit record this year.
StarTribune, StarTribune.com
McLaughlin, S. (2001, December 16). City pays for police lawsuits. The Cincinnati Enquirer, 1C.
McNeil, B. (2005, November 9). $1.1. Million to settle 3 Lawsuits. Chicago Tribune, 2C.
Meadows, R.J. & Trostle, L.C. (1988). A study of police misconduct and litigation: Findings and implications.
Journal of Contemporary Criminal Justice, 4, 77–92.
Miller, R. & Walter, D.J. (2008). Detention and corrections caselaw catalog (eds. 12–19). Poolesville, MD: CRS,
Inc.
Morning Sun News (2010). Lawsuits expensive for Detroit; 5/28/10. www.themorningsun.com/article/ms.
Muhammad, C. (2009, February 27). The high cost of police brutality. New America Media.org.
National League of Cities (1985, November). Seeking solutions on liability insurance. Nation’s Cities Weekly,
25, 3–5.
Novak, K.J., Smith, B.W. & Frank, J. (2003). Strange bedfellows: Civil liability and aggressive policing. Policing:
An International Journal of Police Strategies & Management, 26, 352–368.
Robertson, J.E. (2004). The impact of Farmer v. Brennan on jailers’ personal liability for custodial suicides: Ten
years later. Jail Suicide/Mental Health Update, 13, 1–6.
Ross, D.L. (1997a). Emerging trends in correctional civil liability cases: a content analysis of federal court
decisions of Title 42 United States Code Section 1983: 1970–1994. Journal of Criminal Justice, 25, 501–515.
Ross, D.L. (1997b). Section 1983 jail litigation: A twenty- five year content analysis. Corrections Compendium,
22, 1–8.
Ross, D.L. (1998). Examining the liability factors of sudden wrongful deaths in police custody. Police Quarterly,
4, 65–91.
Ross, D.L. (2002). An assessment of Graham v. Connor, ten years later. Policing: An International Journal of
Police Strategies & Management, 2, 294–318.
Ross, D.L. (2005). Civil liability for custodial deaths following restraint incidents. Criminal Law Bulletin, 41,
625–640.
Ross, D.L. (2007). An analysis of sudden custody deaths. Law Enforcement Executive Forum, 7, 7–30.
Ross, D.L. (2008a). Examining the liability trends of custodial suicides in jails, lockups and prisons. Paper
presented at the annual meeting of the Academy of Criminal Justice Sciences, Cincinnati, OH.
Ross, D.L. (2008b) Scott v. Harris: Seeing is believing. Criminal Justice Review, 33, 431–446.

30

Ross, D.L. & Bodapoti, M. (2006). An analysis of the claims, losses, and litigation of law enforcement agencies
in Michigan. Policing: An International Journal of Police Strategies & Management, 29 (1), 38–57.
Ross, D.L. & Page, B. (2003, January/February). Jail liability: Reducing the risk by studying the numbers.
American Jail Magazine, 2 (1), 9–15.
Scarborough, K.E. & Hemmens, C. (1999). Section 1983 suits against law enforcement officers in the circuit
courts of appeals. Thomas Jefferson Law Review, 21, 1–21.
Schlanger, M. (2006). Civil rights injunctions over time: A case study of jail and prison court orders. New York
University Law Review, 2, 550–630.
Schlanger, M. (2012). Trends in prisoner litigation, as the PLRA enters adulthood. University California Irvine
Law Review, 5, 153–178.
Schmidt, W. (1974). Survey of police misconduct litigation: 1971. San Francisco, CA: Americans for Effective
Law Enforcement.
Schmidt, W. (1976). Recent developments in police civil liability. Journal of Police Science and Administration,
4, 197–202.
Schwartz, J.C. (2014). Police Indemnification. New York Law Review, 89, 885–1005.
Scogin, F. & Brodsky, S.L. (1991). Fear of litigation among law enforcement officers. American Journal of
Police, 1, 41–45.
Silver, I. (2010). Police civil liability. New York, NY: Matthew Bender & Co.
Singer, R.G. (1980). Prisoners’ rights litigation: A look at the past decade and a look at the coming decade.
Federal Probation, 44, 3–11.
Smith, M.R. (1995) Law enforcement liability under Section 1983. Criminal Law Bulletin, 13, 128–150.
Sontag, D. & Barry, D. (1997, September 17). Using settlements to measure police abuse. New York Times, 1A.
Swickard, J. (2005, July 15). Police Lawsuits Drain Detroit’s Pocketbook. Detroit Free Press, 1B.
Swickard, J. & Hackney, S. (2001, August 3). Detroit Police Lawsuits Costly. Detroit Free Press, 3A.
Thomas, J.D., Aylward, A., Casey, M.L., Moton, D., Oldham, M. & Wheeler, G. (1985). Rethinking prisoner
litigation: Some preliminary distinctions between habeas corpus and civil rights. Prison Journal, 65, 83–106.
Thomas, J.D., Keeler, D. & Harris, K. (1986). Issues and misconceptions in prisoner litigation: A critical view.
Criminology, 24, 775–796.
Turner, W. (1979). When prisoners sue: A study of prisoner Section 1983 suits in the federal courts. Harvard
Law Review, 92, 610–663.
United States Commission on Civil Rights (2004, January). Police Practices in Civil Rights in America.
Washington, DC: U.S. Commission on Civil Rights.
Vaughn, M.S. (1994). Police civil liability for abandonment in high- crime areas and other high risk situations.
Journal of Criminal Justice, 22, 407–424.
Vaughn, M.S. & Coomes, L.F. (1995). The liability of moonlighting: are police officers employed as security
guards acting under color of law? Police Liability Review, 6, 6–9.
Vaughn, M.S., Cooper T.W., and del Carmen, R.V. (2001). Assessing legal liabilities in law enforcement: Police
chief’s views. Crime and Delinquency, Vol. 47: 3–27.
Wardell, M.J. (1983). Section 1983: A change in the meaning of Under Color of Law: Polk County v. Dodson.
Arizona Law Review, 25, 151–175.
Warner, J. (2011, May 18). Denver police brutality scandal: A multimedia timeline. Westworld.com.
Washington, L. (2011, February 9). Cities like Philly waste millions defending crooked, racist cops: Alley car
ethics & other antics. thiscantbehappening.net.
Weinstein, H. (2000, August 29). Judge OKs use of racketeering law in rampart suits. Los Angeles Times, 1A.
West, H.C. & Saboul, W.J. (2008). Prison Inmates at Mid- Year 2008. Bureau of Justice Statistics. Washington,
DC: U.S. Department of Justice.
Worrall, J.L. (1998). Administrative determinants of civil liability lawsuits against municipal police
departments: an exploratory analysis. Crime and Delinquency, 44, 295–313.
Worrall, J.L. & Gutierrez, R.S. (1999). Professional notes— Potential consequences of community- oriented
policing for civil liability: Is there a dark side to employee empowerment? Review of Public Personnel
Administration, 19, 61–70.
Zargans, E.H. (1985). Under color of what law? A reconstructed model of Section 1983 liability. Virginia Law

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Review, 71, 499–598.

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2
Foundations for Liability

33

Overview

Criminal justice personnel have increasingly become targets of civil lawsuits. Historically it has been common
to read about a police or correctional officer being charged with brutality. In contemporary times, issues of
liability have expanded beyond limited allegations of police or correctional officer brutality to include virtually
every task performed by criminal justice personnel. Liability principles apply to all public officers, not just
police officers. Detention and correctional personnel, probation and parole officers, including supervisors and
administrative personnel, are subject to civil liability today. It is important for all criminal justice personnel to
have a fundamental working knowledge of the critical components of civil liability, regardless of their level of
responsibility.

Liability Under Tort Law

The most common area of liability in criminal justice today arises out of tort law. Torts allow recovery for
personal injury. Personal injury claims include battery, negligence, and emotional distress. Most states have
voluntarily passed laws known as tort claims acts in order to remove sovereign immunity obstacles. These laws
have allowed numerous plaintiffs to file lawsuits seeking redress for violations of their rights.

From a broad perspective, all law is tort law, because the United States is a common law country (Silver,
2017). It is important to recognize that there is no clear definition of tort. While contract or property law is
more clearly defined, tort law is loosely structured and often less clearly defined. A tort is a civil wrong. The
term originates from the Latin word tortus, meaning bent or twisted. Initially crimes and torts were treated the
same, and an individual or a group would respond to the wrongdoing by personally taking action against the
accused. Over time, as private vengeance gave way to criminal laws codified and prosecuted by the state in the
name of the victim, torts and crimes evolved into separate legal concepts. Tort actions are civil legal actions
arising out of situations between private parties. The injured party files a lawsuit seeking legal relief in the
form of damages rather than criminal sanctions. Tort actions do not include breaches of contract.

Many criminal justice personnel are more familiar with criminal law than they are with aspects of civil law,
because they enforce and apply criminal law on a daily basis. Because the liability of criminal justice personnel
falls into the civil law arena, a brief comparison between criminal law and civil law is necessary (see Table 2.1).

Table 2.1 Criminal Law versus Tort Law

Components of Criminal Law Components of Tort Law

A public offense Private or civil wrong
State vs. Individual Individual vs. Individual

Fines, probation, incarceration, death Monetary sanctions
Guilt beyond a reasonable doubt Preponderance of the evidence

Acquittal normally not appealable by the state Both parties may appeal
The state receives fines and restitution goes to victim Plaintiff receives monetary damages as compensation

Both criminal law and tort law seek to control behavior and impose sanctions.

Criminal Law

Crimes are defined in terms of conduct that is forbidden or required and the mental state of the individual at
the time of the prohibited act or omission (Gardner & Anderson, 2011). Crimes can also be defined in terms of
harm done to a particular victim and against the state. Crimes are viewed as offenses punishable by the state in
the name of the victim, through assessing fines, probation, community service, imprisonment, or death. In the
American criminal justice system, the state— through the prosecutor— brings criminal charges against the

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accused. The state has the burden of proving its case “beyond a reasonable doubt,” which is a high standard of
proof. Should a jury or judge find the accused guilty, the judge will determine an appropriate sanction for the
defendant, to be administered by the state. In a criminal case the accused has numerous constitutionally
protected rights and has the right to appeal a conviction. The state generally does not have the right to appeal
an acquittal.

Torts

Torts are private injuries or wrongful acts that result in an injury or harm between individuals or their
property. An individual who suffers a private injury may seek redress (damages) in a civil action, rather than
through the criminal law process. The injured party (the plaintiff) seeks compensation from the injuring party
(the defendant). The standard of proof needed to prevail in a civil action is that of “a preponderance of the
evidence,” which is a lower standard than “beyond a reasonable doubt.” This means that a jury reviewing the
case and evidence only needs to be convinced by a 50.1 percent margin to find in favor of either party. In a
civil action the state does not represent either party; rather, both parties may be represented by retained legal
counsel, or an individual may bring the case to court without assistance of counsel (known as pro se). In civil
cases the losing party may appeal the decision to the next higher court, including the United States Supreme
Court. Should the plaintiff prevail in a civil suit, the defendant may have to pay monetary damages, including
compensatory damages, punitive damages, court costs, and attorney’s fees. The purpose of tort law is to
compensate the plaintiff, provide justice, and deter others from similar behavior.

Some torts may also be crimes. Consider a police officer engaged in the high- speed pursuit of an alleged
criminal. Should the officer operate the patrol car recklessly and hit and kill an innocent party, the officer
could be prosecuted for manslaughter or murder, depending on the circumstances. If the officer is convicted of
a crime, the state could impose a sanction such as a fine, probation, or incarceration. The victim’s family could
also file a civil lawsuit against the officer, claiming that the officer violated the constitutional rights of the
deceased. Should the officer lose, the plaintiff could be awarded monetary damages.

Types of Torts

Dividing torts into categories can be problematic, because the dividing lines can be unclear. There are three
general categories of torts: intentional, negligent, and strict liability. Criminal justice practitioners are most
often sued for intentional and negligent torts. Strict liability torts are generally associated with activities that
are so dangerous or hazardous that a person who engages in such activities can be substantially certain that the
conduct will result in injury or damages (Silver, 2017); for example, workers performing duties that expose
them to dangerous levels of hazardous chemicals and the potential for those chemicals to seep into the public
water system. The company may be held liable for such conduct. Criminal justice functions normally do not
fall under strict liability torts and will not be discussed here.

Intentional Torts

More than any other occupation, the work of criminal justice practitioners requires them to intrude into the
affairs of many people. Stopping, arresting, detaining, frisking, searching, and performing other tasks have
provided a steady flow of intentional tort litigation against criminal justice personnel (specific types of
intentional torts will be discussed in Chapter 3).

Intentional torts may be committed against a person or property (del Carmen, 1991). This discussion will
focus on torts against people, because it is more likely that an intentional tort claim would be assessed against
an officer in criminal justice rather than against property. In order to prevail, the plaintiff must prove that an
officer’s behavior was intentional. Intentional torts are behaviors that are highly likely to cause injury to
another. Intent is not easily defined, but in the context of tort it means to bring about some physical or mental
harm, either through omission or commission by the actor. Further, because the intent is in the mind of the
officer, the plaintiff may have difficulty proving an officer’s intent in court. An example of an intentional tort

35

is a classification officer at a prison reception center intentionally placing a prisoner in a housing unit next to
known enemies, and a day later that prisoner is sexually assaulted by two other prisoners. Liability most
certainly would attach, because the classification officer knew of the likelihood of harm to the prisoner and
intentionally housed him in the unit knowing that harm could result.

Negligent Torts

Members of society owe a duty of reasonable care to one another (Silver, 2017). While intentional torts emerge
from the purposeful conduct of an officer, negligent torts frequently arise from failing to perform a particular
duty. Negligence is the breach of a common law or statutory duty to act reasonably toward those who may
foreseeably be harmed. The distinction between intent and negligence is a matter of degree. The line has been
drawn by the courts at the point where the known danger stops being only a foreseeable risk that a reasonable
person would avoid, and becomes in the mind of the actor a substantial certainty (Prosser & Keeton, 1984).
Negligence is the absence of care according to the circumstances, and requires a lesser degree of foreseeability
than intentional torts.

The officer’s state of mind is not in question when evaluating his or her conduct, because even inadvertent
behavior that causes an injury may lead to liability. An important question to ask when assessing negligent
conduct is: “Did the officer’s conduct create an unreasonable risk for another?” For example, it is standard
practice in policing to secure handcuffs on an individual by double- locking the single bars to prevent them
from rotating so that they do not tighten around the wrist and cause injury. Liability may attach if an arresting
officer fails to check the tightness of the handcuffs and double- lock them, and the arrestee sustains a wrist
injury during arrest and transport. The criminal justice field is replete with situations in which negligence
liability may arise. Some examples include use of equipment and vehicles, failure to protect, operating
defective jails or prisons, and negligence in responding to calls for service.

Negligent torts are separated into two categories. Simple negligence means that an officer failed to exercise
reasonable care in the performance of his or her duties, which led to an injury. Gross negligence means that
the officer performed his or her duties with reckless disregard of the consequences of the actions that caused
harm to another person or property. The distinction between these two categories is important because liability
depends on which type is alleged. Normally, gross negligence is required in order for a plaintiff to prevail.

Other Types of Liabilities

Tort law provides the foundation for potential liability of criminal justice personnel. There are, however, other
areas of liability that affect public officers. State tort liability exists for every public officer. This area of
liability will be discussed in Chapter 3. While each state has tort laws, they also have different areas of liability.
State tort liability typically includes such torts as wrongful death, false arrest, failure to protect, assault and
battery, and invasion of privacy.

State Civil Rights Laws

Some states have civil rights laws that are similar to various federal civil rights laws. These laws provide
sanctions for violations and are implemented as federal rights laws at the state level. This provides for more
effective enforcement of the law by state authorities. Normally, federal officials allow the states to implement
federal law with minimal interference.

Criminal Liability

Public officers may incur criminal liability under state law. The penal codes of most states provide for criminal
prosecution of public officials who commit acts that violate the civil rights of an individual. Criminal justice
personnel acting within the scope of their employment may be charged with a crime if they intentionally
commit unlawful acts against an arrestee or prisoner in confinement, mistreat an arrestee, intentionally subject
a person in custody to bodily injury or death, or knowingly engage in sexual activities with arrestees or

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prisoners.
Criminal justice officers may also face criminal liability under federal law— Title 18 U.S. Code § 242

(Criminal Liability for Deprivation of Civil Rights) and § 241 (Conspiracy to Deprive a Person of Rights) which
was enacted in 1886. Under § 242 the defendant officer must have acted under color of law, acted intentionally
to deprive the person of a protected right, and the person must actually have been deprived of that right. The
law provides for a criminal sanction and under § 241 punishes the violation for conspiracy to commit the act,
which requires at least two participants. Title 18 § 242 states:

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 alien, or by 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 10 years, or both; and if death results from the acts committed in violation of the 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 core component of the statute requires that the official charged with a crime must have acted under “color
of law.” This means that the officer or administrator abused or misused their legal authority provided to them
through their sworn oath of office. The phrase would include an official taking actions in his or her official
duties granted to them by state and local laws, ordinances, and their department’s rules and regulations.
Conduct that violates the law while the official is performing his or her sworn duties constitutes acting under
color of law.

For example, a former correctional officer working in a detention center abused his authority by beating a
mentally ill detainee. While conducting a search of the detainee’s cell, the officer twisted the detainee’s wrist
and arm and kicked him in the upper body. During the assault the detainee was lying on the cell floor,
compliant with one hand cuffed, and posed no threat to the officer, nor did he threaten him. The FBI
investigated the assault and the officer pleaded guilty to violating the detainee’s civil rights and assaulting a
detainee with mental illness. The officer was sentenced to 24 months in prison followed by three years of
supervised release. The officer also lost his certification to work in the criminal justice system (DOJ press
release, 2014).

The Civil Rights Division of the Special Litigation Section is charged with enforcement of and investigating
complaints made by citizens and prisoners against criminal justice officials in accordance with § 242. From
1997 to 2015, § 242 prosecutions made up only 0.02 percent of all cases prosecuted by the U.S. Attorney
General’s office (AOC, 2016). Other criminal prosecution charges include: immigration (41 percent), all drugs
(22 percent), violent crimes (19 percent), and white collar crime (nine percent). More than 90 percent of the
offenders pleaded guilty, corresponding to an equivalent conviction rate.

Ross (2017) performed an analysis of 496 press releases reported by the division from 1997 to 2015 of § 242
prosecutions and sentences of criminal justice officials. The press releases identify the following information:
the offender’s name and age, the agency type, the state and location of the federal court, the charge(s), the
officer’s plea, the conviction and type of sentence, and the conditions of the sentence.

During the period, 810 defendants were prosecuted and sentenced. Cases prosecuted and types of sentences
awarded, reported by the division, averaged about 26 annually. Municipal police departments accounted for
265 of the sentences (53 percent) and correctional agencies accounted for 231 (47 percent). Of the correctional
agencies, jail facilities accounted for 70 percent and state correctional departments, primarily prisons,
accounted for 30 percent. Overall, line officers accounted for 82 percent of the prosecutions and convictions
and administrators/supervisors accounted for the remaining 18 percent. In 60 percent of the prosecutions two
or more officers participated in the incident. The trends of prosecutions and sentencing in accordance with §
242 are shown in Table 2.2.

Table 2.2 Charge by Position Type, and Prison Sentence by Charge

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Table 2.2 shows that federal prosecutors commonly prosecute 11 charges against criminal justice officers. All
offenders were charged and found guilty of civil rights violation and then charged with the specific charge(s)
respective of the incident. Generally, more than one charge was filed per official and the number will not total
100 percent. In 38 percent of the cases two charges were filed against the defendant officer and/or supervisor,
and in 49 percent of the cases three or more charges were filed. Sentences for charges of excessive force
accounted for about one- third of all convictions. In 80 percent of the filed cases the defendant
officer/supervisor pleaded guilty and the remainder proceeded to trial. Supervisors were more likely to proceed
to trial. If the defendant filed a false report or provided a false statement during the investigation, prosecutors
added a charge of obstruction of justice. The more charges the defendant was convicted of, the longer the
sentence. Offenders who pleaded not guilty and proceeded to trial received a 10 percent longer prison sentence
and the amount of the fine increased by 10 percent.

Federal judges are more likely to sentence defendant officers and supervisors to a period of prison and these
sentences accounted for 96 percent of all sentences. A prison sentence alone accounted for 40 percent of the
sentences and averaged 100 months (eight years). Split sentences accounted for 56 percent of the sentences,
which included a prison sentence accompanied with community release, and often a fine and/or restitution.
Regardless of the crime and sentence, the average fine/restitution amounted to $7,800 when a monetary award
was assessed. A sentence of probation accounted for four percent of the sentences and averaged 36 months,
with an average fine of about $4,000. Home confinement was used in about three percent of probation
sentences.

The longest sentence awarded was for a homicide or a custodial death, which included a life sentence. A
monetary fine of an average of $15,000 was also assessed in life sentence for a custodial death. A prison
sentence for robbery averaged 150 months, as the crime involved the use of a firearm. The crime of larceny
rarely occurred but it accounted for the third longest prison sentence, averaging 100 months (eight years). The
fourth longest sentence granted by the court was for sexual assault of a prisoner or arrestee and averaged 133
months (11 years) and an average fine of $15,000. The sentences are compared to the federal sentencing norms
awarded by the courts to non- criminal justice official offenders (last column). No matter the position of the
criminal justice official or the charge, their sentences either doubled or tripled the federal sentencing norm.

Correctional officers were more likely than law enforcement officers to be sentenced for the crimes of
excessive force, sexual assault of a prisoner, filing a false report or submitting a false statement about the
incident, and obstruction of justice. Subsequently, correctional officers received longer prison sentences for
these convictions than law enforcement officers. Correctional officers were not charged with the crimes of
larceny, robbery, or theft of a motorist. Law enforcement officers were more likely to be sentenced to longer
sentences for aggravated assault. For the four homicides, law enforcement officers committed three of them,
used a firearm, and they and the correctional officers received a sentence of life without parole. Correctional
officers received a slightly longer sentence for a custodial death than law enforcement officers. Administrators
were sentenced for six of the 11 common charges and generally received a 10 percent longer sentence than
defendant officers.

The analysis shows that conviction rates are high and defendant officers can expect a long prison sentence

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for abusing their authority. The defendant officer will receive a sentence of probation in only a small
percentage of the convictions. High conviction rates may not only reflect the severity of the crime, but also
reflect DOJ prosecutors’ case selection for pursuing highly winnable cases and a jury returning a true bill of
indictment. Because federal prosecutors only proceed with the most compelling evidence, defendant officers
and supervisors may be better served in pleading guilty to avoid a longer prison sentence.

Besides each defendant officer or supervisor receiving longer sentences than the federal sentencing norm,
they also lost their certification to work in the criminal justice system for life. This is in line with the United
States Supreme Court’s sentencing policy and Justice Kennedy’s comments made in Powell v. United States
(1996), stating that actions committed by officials under color of law explicitly enhance sentences for official
misconduct beyond those for civilian misconduct. Justice Kennedy also wrote that it is expected a public
official who is convicted for using his governmental authority to violate a person’s rights would be prevented
from obtaining future government employment following the conviction of a serious crime. Examples of
enforcement of § 242 include (DOJ, 2016):

A former Georgia sheriff arrived on location after several deputies had chased a suspect through
woods; a deputy had secured the arrestee in handcuffs without incident. When the sheriff arrived the
arrestee was lying prone on the ground handcuffed. The sheriff kicked the arrestee in the ribs, punched
him in the head with his fist several times, and kneed him in the ribs several times, causing severe
injuries. The sheriff struck the arrestee with such force his hand began to bleed. After the FBI’s
investigation into the assault, the sheriff pleaded guilty to two counts of violating the civil rights of an
arrestee and assaulting the arrestee. He was sentenced to 30 months in prison and to three years of
supervised release. The sheriff also lost his law enforcement certification (DOJ press release, 2016).
A former New Jersey correctional officer made sexually explicit comments to a female prisoner.
During the night the officer entered the prisoner’s cell and raped her. Expert testimony and DNA
evidence corroborated the prisoner’s testimony. During the investigation the officer lied to the FBI.
The officer later pleaded guilty to sexual assault and was sentenced to 25 years in prison, five years of
supervised release, and ordered to pay $6,000 in restitution (DOJ press release, 2016).
For their participation in beating a handcuffed detainee, two county sheriff deputies pleaded guilty to
willfully depriving the detainee of his constitutional right to be free from the use of excessive force.
While acting in their capacity as law enforcement officers the deputies punched, kicked, and slapped
the detainee, who was lying on the ground in handcuffs and offering no resistance. The first deputy
was sentenced to serve three to four years in prison and the second deputy was sentenced to 34
months in prison (January 2012).
Former officers of the New Orleans Police Department were convicted by a jury for beating to death
an arrestee. During the trial, evidence showed that the officers stopped a man on the street and, during
the arrest, one officer restrained the man while the other officer kicked him in the side and struck him
repeatedly with a metal baton. The arrestee offered no resistance and suffered fractured ribs, a
ruptured spleen, and injuries that triggered massive internal bleeding. The officers transported the
arrestee to the hospital, where they falsely informed medical personnel that he was suffering from a
drug overdose. The arrestee died shortly after admission into the hospital. During an investigation of
the death the officers attempted to cover up their actions and falsely stated to the FBI that they never
used force on the arrestee and that he had collapsed on the street, necessitating his transport to the
hospital. The first officer was sentenced to 22 years in prison for violating the civil rights of the
arrestee and for obstructing justice in the wake of the beating. The partner of the first officer was
sentenced to five years and 10 months in prison for obstructing justice and for making false statements
to the FBI. He was also ordered to pay $11,576 in restitution (September 2011).
A police officer pleaded guilty to forcing a female arrestee to engage in sexual relations with him on a
traffic stop or risk being incarcerated in jail. She complied and the officer released her. After a federal
investigation the officer lied to the FBI. The officer later pleaded guilty and received a federal prison
sentence (October 2008).
The former police chief of Gary, Indiana, was convicted of a felony civil rights violation for using
excessive force. The jury found that the chief used excessive force during an arrest resulting in a
federal civil rights investigation. The chief entered a residence and assaulted the occupants. Testimony

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in court by on- scene officers confirmed that the chief kicked handcuffed individuals while they were
on the ground. The chief claimed he kicked only one person after he himself had been kicked
(September 2008).
The warden of a Hawaii prison was sentenced to 24 months in federal prison and a correctional officer
was sentenced to 39 months in prison in separate incidents. The warden admitted he ordered a
prisoner to be brought to the central area of the prison where he handcuffed the prisoner to a pole. The
warden repeatedly struck the prisoner with a board until it broke. The officer struck another prisoner
in the head repeatedly without provocation and the prisoner sustained ear- drum damage. The officer
admitted to the beating and making false statements to the FBI (April 2008).
A Tennessee jail supervisor was sentenced to 33 months in federal prison for subjecting a prisoner to
cruel and unusual punishment. The supervisor confined a prisoner in a small holding cell amid human
waste and required that the prisoner be restrained in a straitjacket while in the cell 12 hours a day for
three straight weeks. A correctional officer was also convicted for beating the prisoner and throwing a
chemical agent into the cell as retribution for an earlier misconduct incident (June 2007).
Six correctional officers of the Arkansas Department of Corrections beat and repeatedly shocked two
naked and handcuffed prisoners with a Taser and a cattle prod. During a separate incident, three of the
six defendants shocked and beat another handcuffed prisoner. Ultimately five officers entered guilty
pleas while the sixth was convicted at trial. The officers were sentenced to prison terms ranging from
24 to 78 months under § 242 for imposing unusual punishment under color of law (February 2001).
A North Carolina police officer pleaded guilty to a felony civil rights charge for coercing women,
whom he stopped or arrested, into having sex with him. He was sentenced to 10 years in prison for
willful deprivation of liberty without due process under color of law (September 2003).
An Oklahoma police officer was convicted and sentenced to prison for assault for fracturing the hip of
a 67- year- old arrestee he stopped for a traffic violation. The officer was prosecuted under § 242 for
the willful deprivation of the victim’s liberty without due process under color of law (July 2004).
A Texas police officer was convicted on federal civil rights charges under § 242 for repeatedly
assaulting a handcuffed man while the officer was acting under color of law. The officer first kicked
and choked the man, then proceeded to stick the barrel of his gun into the victim’s mouth, threatening
to kill him. The officer attempted to cover up his actions by submitting a false report (September 2004).
Officer Justin Volpe was sentenced to 30 years in prison under § 242 for brutally sodomizing Abner
Louima in New York. Volpe was also assessed $281,000 in restitution and ordered to pay a special fee
of $585 (United States v. Volpe, 2000).

Federal Civil Rights Laws

Criminal justice personnel may also incur liability for violating the civil rights of another under federal law.
Title 42 United States Code § 1983 provides remedies such as monetary damages or injunctive relief for
violations of constitutional rights. The § 1983 lawsuit is filed in federal court and claims that the officer or
official, acting under color of law, deprived the plaintiff of a constitutionally protected right, either prior to or
during arrest or detention, during incarceration, or after release (parole).

Title 42 United States Code § 1985 (Conspiracy to Interfere with Civil Rights) provides a civil remedy to
plaintiffs who can show that two or more officers conspired to deprive them of their civil rights. Under § 1985
the burden is on the plaintiff to prove that the officers actually agreed to participate in the action. The plaintiff
must also prove intent to deprive him or her of equal protection under the law. For example, two detention
officers and the sheriff meet and agree to house a detainee in a cell with a known violent offender who would
purposely beat the detainee on the sheriff’s order. The three could be held civilly liable for violating the
detainee’s rights under § 1983, and under § 1985 for conspiracy.

Violent Crime Control and Law Enforcement Act

Police departments have a higher probability of incurring liability since the passage of § 210401 of the Violent
Crime Control and Law Enforcement Act of 1994 (Title 42 U.S. Code §§ 14141 and 14142). Passed partly as a
result of the Rodney King incident, it grants the Department of Justice extremely broad investigative powers

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and prosecutorial authority in cases of alleged use of excessive force. Sections 14141 and 14142 permit the DOJ
to investigate patterns or practices of misconduct in local police departments and require the collection of
statistics on “police abuse.” The DOJ has the authority to look beyond the acts of an individual officer and into
the affairs of the entire police department. The statute also gives the DOJ authority to file civil actions on
behalf of citizens to obtain declaratory or equitable relief. The Pittsburgh, Pennsylvania, and Steubenville,
Ohio, Police Departments were the first two police departments in which the DOJ utilized the statute; both
departments were under five- year consent decrees with the federal government from 1997 until successful
completion in 2002. Since October 1996 the DOJ has conducted 47 investigations of law enforcement agencies
and there are 17 ongoing investigations. As abuses come to the attention of the DOJ, other agencies are
investigated (see Chapter 8 for a detailed discussion on the trends of these consent decrees).

As an example of the application of a § 14141 investigation, the Seattle, Washington, Police Department was
investigated by the DOJ Special Litigation Section in 2011 for engaging in a pattern and practice of excessive
force violating the Constitution and federal law (DOJ, 2012). Investigators and attorneys from the DOJ
conducted numerous interviews with SPD officers and administrators, city officials, community members, and
local advocates. Investigators also examined SPD policies, procedures, training materials, internal records and
data, video footage of arrests, and investigative files of arrests. The DOJ determined from the investigation that
long- standing deficiencies emerged from excessive use of force incidents, excessive force used against a high
number of persons with mental illness, lack of oversight in enforcing policies, deficiencies in training officers
in using appropriate use of force, deficiencies in reporting force incidents, an ineffective system of complaint
investigation and adjudication, an ineffective system of early identification and intervention with problem
officers, and a failure to collect adequate data to assess biased policing allegations. Resolution of these findings
required a written agreement, which sets forth remedial measures to be taken within a fixed period of time,
enforceable by the court.

The DOJ (2010) filed a Statement of Interest in a class action lawsuit challenging the Franklin County
Sheriff’s Office’s use of conducted electric devices (CEDs, commonly known as Tasers) against detainees in its
jails. The DOJ filed a motion asking the Court to allow them to intervene as a party in this lawsuit. The
complaint alleged that the Franklin County Sheriff’s Office violated 42 U.S.C. § 14141 by engaging in an
unconstitutional pattern and practice of using CEDs in an abusive manner, failing to adequately investigate use
of CEDs, and failing to adequately train corrections deputies in the use of CEDs. In February 2011 the claims
were resolved by entering into a court- enforceable settlement agreement with Franklin County. The
Settlement Agreement requires the Franklin County Sheriff’s Office to reform its policies, procedures, and
training on use of CEDs, and its internal investigations of all uses of CEDs. The DOJ will monitor compliance
with the Settlement Agreement.

The Civil Rights of Institutionalized Persons Act (CRIPA)

Passed by Congress in 1980, the Act ensures that the rights of institutionalized persons are protected from
unconstitutional conditions. Title 42 U.S.C. § 1997 et seq. permits the Attorney General to bring civil lawsuits
against state institutions regarding the civil rights of those housed in the facility, including the conditions of
their confinement and the use of excessive force. State institutions may include jails, prisons, and other
correctional facilities (juvenile or adult), nursing homes, and other institutions that house the mentally
impaired or chronically ill. CRIPA allows the DOJ to bring legal actions (similar to § 14141, discussed earlier)
for declaratory or equitable relief for a pattern or practice of unconstitutional conditions of confinement.

From 2000 to 2014 the DOJ initiated CRIPA actions against 50 jail facilities and 28 prison facilities, which
included investigations, finding letters, memorandum of agreements, and consent decrees (Ross, 2016).
Examples of these actions include (Ross, 2016):

In December 2011 a court- enforceable Settlement Agreement was made between the DOJ and the
Lake County Jail (Indiana) to remedy the unconstitutional conditions found in their investigation of
the jail under the Civil Rights of Institutionalized Persons Act. The Settlement Agreement addresses
problems that included suicide prevention, use of force, medical care, mental health care, fire and life
safety, sanitation, and training. The DOJ will monitor compliance with the settlement agreement every
six months and file a report with the Court.

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The DOJ conducted an investigation of the Miami- Dade County Jail (MDCJ) under the Civil Rights of
Institutionalized Persons Act. The investigation was performed to determine whether allegations of
conditions of confinement violated the rights of detainees. The DOJ found deficiencies in MDCJ’s
mental health care, suicide prevention, failure to protect prisoners from physical harm, and failure to
provide sanitary and safe conditions (August 2011).
An investigation of the Mobile County Metro Jail (MCMJ) was conducted by the DOJ investigators
regarding conditions of confinement under the Civil Rights of Institutionalized Persons Act. The
county initially cooperated in this investigation but then ceased communicating about it. The DOJ
continued the investigation and found unconstitutional conditions at MCMJ, including problems with
inadequate mental health care, excessive restraint, failure to protect prisoners from physical harm, and
unsafe and unsanitary conditions. Based on the findings of the investigation, officials of MCMJ agreed
to make changes in policies and conditions, as stipulated in the agreement (January 2009).
The DOJ reached an out- of- court agreement with the Wicomico County Detention Center in
Salisbury, Maryland, regarding systematic violations of prisoners’ federally protected rights. The
investigation showed that the detention center failed to provide required medical and mental health
care, failed to provide adequate prisoner safety, and failed to provide sufficiently sanitary living
conditions. Under the terms of the agreement the detention center will address and correct the
deficiencies identified by the DOJ (July 2004).
The Civil Rights Division of the DOJ filed a lawsuit challenging the conditions of confinement at the
Terrell County Jail in Dawson, Georgia. The complaint alleged that the jail routinely violated federally
protected rights, including failing to protect prisoner safety, and failing to provide required medical
and mental health care (June 2004). A more detailed assessment of the trends of CRIPA actions is
discussed in Chapter 8.

Americans with Disabilities Act (ADA)

The Department of Justice may file a lawsuit in federal court against a criminal justice agency to enforce the
ADA in accordance with 42 U.S.C. § 12131, Titles I, II, and III. The ADA prohibits discrimination on the basis
of a disability in public places, including criminal justice agencies. The DOJ may obtain civil penalties of up to
$55,000 for the first violation and $110,000 for a subsequent violation. The DOJ is authorized to perform
investigations of ADA claims and may resolve the matter with a written formal settlement agreement. In 2007
two such settlements with county jails were resolved stemming from prisoner disabilities (DOJ, 2008). ADA
claims generally focus on allegations of discrimination regarding medical care and mental health treatment
issues.

Further, a plaintiff may cite an ADA violation in conjunction with a § 1983 legal action. In O’Guinn v.
Lovelock Correctional Center (2007) a prisoner filed a § 1983 action alleging that he was denied accommodation
and treatment for a mental illness under the ADA. The district court dismissed the lawsuit in accordance with
the Prison Litigation Reform Act and an appellate court affirmed. The prisoner requested a lower bunk due to
poor balance resulting from a brain injury and asserted that such denial by prison personnel violated his right
to mental health treatment. The court ruled that the prisoner failed to exhaust internal remedies to his
complaint as required in the PLRA. Prior to the lawsuit the prisoner submitted a complaint to the DOJ and the
court determined that the DOJ’s investigation of the complaint did not satisfy the exhaustion requirement of
the PLRA as the investigation did not terminate the prisoner’s rights to pursue an ADA claim.

Moreover, in Herman v. County of York (2007) the estate of a prisoner who committed suicide while
confined in jail filed a § 1983 claim asserting that officers and health care staff violated the ADA by failing to
protect the prisoner from taking his own life. Under the Eighth Amendment the estate alleged that officers
failed to check on the prisoner and that health care staff were deliberately indifferent to his medical care needs
and failed to place him on a suicide watch. The court granted summary judgment for the defendants, holding
that they were not deliberately indifferent to the needs of the prisoner. Further, the court determined that
neither the medical staff nor the officers discriminated against the prisoner as they did not deny him access to
jail services, programs, or activities of a public entity in violation of the ADA. The court determined that the
prisoner denied suicidal thoughts, informed a nurse that he did not wish to take his prescribed antidepressant
medications, and that a nurse advised him to return to the medical unit as necessary.

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An ADA claim was brought by the estate of a mentally ill decedent in Waller v. City of Danville (2007). The
suspect had entered a building in an effort to elude officers and held several occupants hostage. The suspect
threatened the occupants’ lives and threatened the responding officers with a knife and a large metal pipe.
Officers gave several verbal commands to the individual to drop the weapons as he advanced toward them and
an officer fired his weapon, killing the suspect. The estate filed a legal action against the officer alleging
excessive force and an ADA claim against the city for failing to train officers in properly responding to the
mentally ill and for failing to make accommodations in their response based on their son’s mental condition.
The court granted summary judgment on behalf of the officers, ruling that the officers confronted a dangerous
situation and that, under the exigent circumstances, the officers had no duty to reasonably accommodate the
suspect’s mental illness. The court opined that it was irrelevant whether the police department had effectively
trained their officers in providing such accommodations to mentally ill hostage takers.

In Seremeth v. Board of County Commissioners Frederick County (2012) a deaf man arrested in a domestic
violence situation involving him and one of his deaf children stated a viable disability discrimination claim in
accordance with the Americans with Disabilities Act. He claimed that handcuffing him prevented him from
writing notes in order to communicate with the deputies. The injury was the failure to make communication as
effective as it would have been among deputies and persons without disabilities. The deputies were entitled to
qualified immunity from liability, however, based on the exigent circumstances involved in a domestic
violence situation. With the deputies concerned about their own safety and the safety of the man’s family, it
was reasonable to try to accommodate his disability by calling a sign language trainee to assist in
communication, and by attempting to use his father as an interpreter.

Discipline or Termination Under Administrative Liability

Criminal justice personnel in state and federal agencies are bound by and subject to sanctions in their
respective departments in accordance with agency rules, regulations, and policy and procedure manuals. These
administrative rules and guidelines govern the conduct of employees. Violating them may expose the employee
to liability and subject that employee to various forms of discipline, up to and including termination. These
rules are binding and may be enforced as long as they comport with constitutional requirements and do not
violate the employee’s rights.

Summary

In order to more fully understand civil liability, the foundations of liability have been presented. The
differences between criminal law and civil law have been provided. It is important to understand that in civil
law the injured party, not the state, brings an action before the court and seeks to be compensated through
monetary awards. Intentional and negligent torts are two types of tort action that are commonly brought
against criminal justice personnel and often form the foundation of civil liability. Other categories of torts have
been presented to further expose the reader to possible liability actions against criminal justice personnel and
agencies. The primary method for filing civil lawsuits against public officers is through § 1983 for alleged
violations of constitutional rights. The plaintiff seeks monetary damages against the officer or governmental
entity for the alleged deprivation.

It is important to underscore that the standard of proof relied upon in civil litigation is very different from
that in criminal proceedings. In civil cases a preponderance of the evidence is all that is required for a plaintiff
to prevail. This is a lower standard than “beyond a reasonable doubt.” This means that a jury need only believe
that there is sufficient evidence to tip the scale in favor of the plaintiff or defendant. The losing party may
appeal a verdict in civil litigation, while in a criminal matter only the defendant may appeal a conviction.

Criminal justice personnel may be criminally and civilly responsible for their actions or failure to act when
performing their duties. They may also be investigated by their own department and, as warranted, may be
disciplined or terminated from employment.

An ongoing trend that bears noting is the investigations performed by the DOJ under § 14141 into
allegations of a pattern or practice of misconduct in police departments. The DOJ has implemented this section
more frequently since 2009, resulting in greater use of five- year consent decrees. Under § 242, criminal

43

prosecutions are rare but a high percentage of convictions result in a prison sentence and the officers losing
their law enforcement certification. A similar trend is also ongoing with investigations by the DOJ into
institutional issues surrounding conditions of confinement under the CRIPA provisions. These provisions are
another subset of laws enforcing the civil rights of citizens and prisoners, enlarging the framework of
accountability and responsibility of criminal justice practitioners. They have significant implications for police
administrators and officers alike, and a more detailed discussion is provided in Chapter 8.

In the chapters that follow, each type of tort action will be thoroughly discussed. As each tort action is
presented, the reader is encouraged to determine how each action may affect his or her own job
responsibilities.

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Bibliography

Administrative Office of the United States Courts (2016). Annual reports to the director (statistics division),
1997–2015. Washington, DC.
del Carmen, R.V. (1991). Civil liabilities in American policing: a textbook for law enforcement personnel.
Monterey, CA: Brady.
Department of Justice, press release (2014, April). Former South Carolina corrections officer sentenced for
beating inmate with mental illness. Special Litigation Section, Office of Public Affairs.
Department of Justice (DOJ) (2008). Special Litigation Section. Agreement between United States of America
and Sebastian County. www.justice.gov/sites/default/files/crt/legacy.
Department of Justice (DOJ) (2010, August). Special Litigation Section. Agreement between United States of
America and Franklin County Sheriff, Ohio www.justice.gov/sites/default/files/crt/legacy.
Department of Justice (2012). Reports of civil rights investigations: 1998–2011. Washington, DC: Civil Rights
Division, Special Litigation.
Department of Justice (2016). The Attorney General’s annual report to Congress describing the department’s
enforcement efforts under the Civil Rights of Institutionalized Persons Act: 2000–2016. Washington, DC: Civil
Rights Division, Special Litigation.
Department of Justice, press release (2016, June). New Jersey correctional officer sentenced to 25 years in prison
for sexual abuse of detainee. Special Litigation Section, Office of Public Affairs.
Department of Justice, press release (2016, October). Berrin County, Georgia, sheriff sentenced for using
excessive force against handcuffed, non- resistant arrestee. Special Litigation Section, Office of Public Affairs.
Gardner, T.L. & Anderson, T.M. (2011). Criminal law (11th ed.). Belmont, CA: Wadsworth Publishing Co.
Johnson, B.R. & Bridgman, P.B. (2009). Depriving civil rights: an exploration of 18 U.S.C. 242 criminal
prosecutions, 2001–2006. Criminal Justice Review, 34, 196–209.
Prosser, W.L. & Keeton, R.E. (1984). On torts (5th ed.). Minneapolis, MN: West Publishing.
Ross, D.L. (2016). Assessing the trends in the application of the Civil Rights of Institutional Persons Act
(CRIPA) in prisons and jails: 2000 to 2014. Criminal Law Bulletin, 52 (6), 1720–1741.
Ross, D.L. (2017). An analysis of Section 242 criminal prosecutions and sentencing trends: 1997–2015. Criminal
Law Bulletin, 53 (3), 569–589.
Silver, I. (2017). Police civil liability. New York, NY: Matthew Bender & Co.

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3
Civil Liability Under State and Federal Tort Law

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Overview

Allegations arising from public officials’ misuse of authority may be filed in federal or state court. As was
noted in Chapter 1, negligence and intentional torts form the foundation of civil liability. This chapter will
examine liability actions brought against criminal justice personnel under both state and federal tort theories.

Negligence claims against criminal justice personnel are based on state tort law. Negligence definitions differ
from state to state, but generally mean the absence of care according to the circumstances (Silver, 2017).
Liability will generally attach if a person acted in disregard of the right of one to whom he or she owed a duty.
Differences in definitions may be due to specific categories and definitions allowed under state law or court
decisions. A citizen’s right to sue a public entity is limited by the doctrine of sovereign immunity. Although in
decline, this doctrine shields the government from being sued by citizens. Most states have constitutional or
statutory provisions that delineate the extent of sovereign immunity. These acts are normally referred to as tort
claims acts. The statutes should be consulted in order to determine whether a particular entity may be sued,
and whether immunity exists. The type of negligence required to hold an officer civilly liable varies from state
to state. Simple negligence may be the applicable standard in one state, while gross negligence may be required
to establish liability in another.

The standard applied in negligent torts is whether an officer’s act or failure to act created an unreasonable
risk of harm to another. Negligence occurs when a person acting unreasonably does not intend to harm
another but fails to exercise due care to prevent such harm (Harris v. City of Compton, 1985). More precisely,
negligence can be defined as subjecting a person to an unreasonable risk of injury. When a police or
correctional officer exercises control over an arrestee or prisoner, he or she has a duty to exercise reasonable
care (Wagar v. Hasenkrug, 1980; Abraham v. Maes, 1983). A person is in custody when he or she is arrested
and later transported by the police or confined by detention officers. This means that the police have a legal
duty to take reasonable precautions to protect the health and safety of prisoners in their custody, render
medical assistance as needed, and treat arrestees humanely. This, however, does not imply that law
enforcement or correctional officers are the absolute guarantors of the welfare of those in their custody.

Establishing negligence is difficult. In some negligence cases an agency’s own policies and procedures have
been used to determine the level of care expected of criminal justice personnel when performing their duties.
For example, in Miller v. Smith (1995) the wrongful death by suicide of an arrestee rose to a level of negligent
conduct on the part of the chief. Failing to provide directives and guidelines in handcuffing or otherwise
restraining an arrestee at the scene of a drunk driving arrest prior to the suicide caused liability to attach to the
city. In Clark v. District of Columbia (1997) the violation of a suicide prevention policy was not negligence per
se. The standard of care provided to prisoners in the facility exceeded a national standard, and liability did not
attach.

To prove a state tort negligence claim, four elements must be established: (1) a legal duty, (2) the breach of
that duty, (3) proximate causation, and (4) an actual injury. All of these elements must be proved by the
plaintiff in order to prevail in a state tort claim of negligence. If any of the four elements is absent there is no
liability.

Duty

Negligence derives generally from common law concepts, and most courts have held that the defendant must
violate a duty to the person injured (Silver, 2017). It may arise from laws, customs, judicial decisions, or agency
regulations (Kappeler, Vaughn, & del Carmen, 1991).

Negligence is based on two concepts: (1) the existence of a duty, and (2) fault, or the breach of that duty
(Prosser & Keeton, 1986). Duty, as a matter of law, is to be determined by the court, while a jury examines fault
from the perspective of a reasonable person.

Criminal justice personnel perform a variety of duties. The authority to perform these duties does not
automatically create a legal duty to perform these functions or a duty to perform them with reasonable care. In

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State v. Hughes (1989), however, the court concluded that police officers have a duty to exercise reasonable
care in their official dealings with citizens who may be injured by their actions. This concept also applies to
correctional personnel. In Davis v. City of Detroit (1986) the court held that absence of a detoxification cell
required by a jail rule was a defective condition in a public building. Further, in Layton v. Quinn (1982), the
court held that prior court orders directing improvements within the jail were relevant to the issue of failing to
comply and contributed to the suicide of a prisoner known to have mental problems.

In order to require an officer to act in accordance with certain standards or levels of care to avoid a risk of
harm to another, there must be a legal duty. Determining whether a duty exists at all is essential. Where no
duty exists there is no liability. Hurely v. Eddingfield (1901) illustrates that our society continues to be reluctant
to impose liability for inaction or to create too many duties to act. A classic example is the case of a drowning
person. While there may be a moral duty to attempt a rescue, there is no legal duty to do so. The law of
negligence is preoccupied with the notion that there is no legal duty to act in many situations where a moral
duty exists (Silver, 2017). Although the outcome in Nelson v. Trayer (1966) might be different today under §
1983 cases, a deputy was held not negligent in arresting only a man for hitchhiking and not his wife, who was
later struck and killed by a passing vehicle.

Statutes will frequently stipulate certain actions of a law enforcement or correctional officer when
performing their duties. Legislatures have passed many laws that form the basis of negligence liability. A
plaintiff may assert that the defendant officer violated a statute and that the violation caused his or her injury.
For example, if a police officer fails to arrest a drunk driver, and that driver later causes an accident in which
another person is injured or killed, that officer could be liable for failing to arrest the driver. In this example,
the statute would require a sobriety test. If the driver fails the test, arrest would be required. The court could
possibly conclude that the officer failed to follow a duty of adhering to departmental regulations and state law.
Such failure could be construed as creating or causing the later accident, and liability would probably attach.

Breach of Duty

Identifying a legal duty owed to the plaintiff is insufficient on its own. The plaintiff must also prove that the
officer failed to perform or breached the legal duty owed. Failing to perform a duty will be based on the factual
situation of the incident. Police may have a duty to arrest drunk drivers, but this does not imply that if the
police fail to arrest every drunk driver and an accident occurs that causes an injury or death, liability will
attach (Kappeler, 1997).

Courts have recognized that criminal justice personnel are liable only to specific individuals and not the
general public (Harris v. District of Columbia, 1991). For example, a police officer restrained a violent arrestee
who was under the influence of PCP and locked him in a police van. Medical care was delayed because the
emergency room physician required the officer to fill out certain forms that initially had been completed
incorrectly. The arrestee subsequently died. The court determined that the officer did not breach a duty of care,
because there was no clearly established obligation to provide general medical services nor to provide such
services to those not formally committed.

In order to prevail, the plaintiff must show some special knowledge or circumstances that set him or her
apart from the general public and show that a relationship exists between the officer and the plaintiff. For
example, in Azure v. City of Billings (1979) officers were held liable for violating a statute requiring the police
to transport intoxicated arrestees to a treatment facility. The arrestee had sustained injuries prior to arrest and
was noticeably intoxicated. There were some signs that he had been assaulted, he was unsteady in his balance,
and his speech was slurred. Rather than transport the arrestee to the medical facility, where his condition could
have been treated, officers transported him to the local jail.

Proximate Cause

If the plaintiff is successful in establishing that there was a legal duty and that the officer breached that duty,
he or she must show that the breach was the proximate cause of the injury. Proximate cause is the direct
factual link between the act of negligence and the plaintiff’s injury. Proximate cause is defined differently by

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many courts. For example, the Michigan Supreme Court in Robinson v. City of Detroit (2000) defined
“proximate cause” as meaning the “one most immediate, efficient, and direct cause preceding an injury.” It
may be enough in one court to show that the officer’s act or omission rose to a level that caused the plaintiff’s
injury, while other courts may rely on a higher standard of recklessness, wanton conduct, or gross negligence,
rather than simple negligence.

A close causal link between the officer’s negligent conduct and the harm to the plaintiff must be proven.
This may be determined by asking, “But for the officer’s conduct, would the plaintiff have sustained the injury,
harm, or death?” An additional relevant question may be, “Was the officer acting recklessly?” The court in
Carlin v. Blanchard (1988) held that a sheriff’s deputy was negligent in the shooting of a fellow officer and was
the proximate cause of the officer’s injuries, despite the fact that the officer’s own conduct contributed to his
injuries.

In Wilson v. Taylor (2009) the estate of a detainee who hanged himself in jail filed suit against the
correctional officials on state and federal constitutional claims. The court agreed with the estate, holding that
there were questions as to whether the detainee’s confinement was valid, that officials maintained policies and
practices that failed to provide follow- up on the detainee’s repeated inquiries about his release, and whether
an officer acted with gross or wanton negligence when he threw the detainee against a bench in the cell by
holding his throat and threatening him. The court held that these actions in their collective totality and
detention officers ignoring the detainee’s repeated release inquiries supported a claim of proximate cause of his
ultimate death.

Occurrence of Actual Injury

The final element required in state tort actions is that of actual injury or damage to the plain-tiff. The plaintiff
must prove that actual damage occurred as a result of the officer’s negligent conduct. Absent a showing of an
actual injury, a plaintiff will not prevail. The injury or damage does not have to be physical. Emotional distress
is sufficient for recovery in a tort action. Because the police are part of a public agency and are accountable to
the public, they have a duty to report their activities in a reasonable manner. A false message that a prisoner
died in custody was actionable on a theory of intentional infliction of emotional distress (Texas Dept. of
Corrections v. Winters, 1989).

In Carroll v. City of Quincy (2006) a detainee lodged in a holding cell at a police station was injured when he
fell with his hands handcuffed behind his back. The detainee filed suit under state law, alleging that the officer
was negligent in performing his duties. The detainee had a blood- alcohol content of 0.37 and later at the
hospital it was determined that he sustained a subdural hematoma, traumatic brain injury, and seizure
disorder. The court held that the officer had subjective knowledge of the detainee’s highly intoxicated state and
liability attached. The court ruled that the officer’s conduct of leaving the intoxicated detainee handcuffed in a
cell alone was associated with the injuries sustained by the detainee and was not undertaken pursuant to any
city policy or custom, as required for the imposition of municipal liability.

Special Duty and Foreseeability

Courts have established that police and correctional personnel may owe a special duty when they have reason
to believe that an arrestee presents a danger to him or herself (Thomas v. Williams, 1962). A special duty of
care may arise when a particular arrestee is recognized to have a diminished ability to prevent self- injury or
cannot exercise judgment with the same level of caution as an ordinary arrestee. Two types of individuals fall
into these two categories: (1) the mentally disabled, who have diminished capacity for self- protection, and (2)
those who are impaired by drugs or alcohol. When it is evident that a particular arrestee has a diminished
capacity or cannot exercise the same level of care as an ordinary person because of mental illness or
intoxication, police officers must ensure that reasonable measures are taken to care for that individual while he
or she is in their custody.

The concept of special duty lacks precise definition but can be based on two factors: (1) the officer’s
knowledge of the arrestee’s mental state, and (2) the extent to which the arrestee’s condition renders him or

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her unable to exercise ordinary care. If it is foreseeable that an arrestee’s condition creates a hazard in the
given circumstances (if there is a reasonable anticipation that injury or damage is likely to occur as a result of
an act or omission), a general duty of care can be required of the police. A combination of several factors must
exist in order to indicate foreseeability, such as: (1) a level of knowledge of the arrestee’s condition by the
officer, (2) condition and history of the arrestee, (3) known propensities of the arrestee, etc. As these factors
increase in severity, a court may be more likely to hold that a special duty existed. This may lead to liability if
the duty is breached.

A special duty stems from a specific mandate (i.e., such as a statute) rather than from situational
relationships (del Carmen, 1991). If an officer possesses sufficient knowledge of an arrestee’s mental or
intoxicated condition and the prisoner is rendered helpless, a special duty to render care may exist. A special
duty of care creates a higher level of responsibility for officers. Other examples of a special duty include
securing accident scenes, protecting witnesses and informants, suicidal prisoners in detention facilities,
prisoner- on- prisoner assaults, failing to follow departmental rules, and operating equipment negligently.

In Govea v. City of Norcross (2004) the elements of negligence and foreseeability are illustrated. Officer
Heiberger was specially trained to work with youths in the city and used his relationships to gather
information for criminal investigations. While performing his duties for the Norcross Police Department,
Heiberger was reprimanded for several safety infractions, including leaving his duty weapon unattended on
the front seat of his patrol car, damaging a police radio by spilling a beverage on it, backing his patrol vehicle
into a tree, and failing to submit investigative reports. His supervisor cited him for these infractions and
Heiberger also received citations for excessive use of sick leave, failure to complete time sheets, failing to
complete accident reports, and tardiness. The chief of police allowed him to resign rather than terminate his
employment so that he could retain his police certification in Georgia. The chief also agreed not to disclose his
poor performance to any hiring agency.

Heiberger was hired by the City of Chamblee and during his field training he was cited for failing to
discover a knife in the back seat of his patrol car, operating his patrol car erratically, and improperly applying
handcuffs on an arrestee. Heiberger resigned from the force but requested to be rehired within two weeks. The
City of Chamblee rehired him but did not provide additional training for him. He again began working with
youths in the community and a boy fatally shot himself with Heiberger’s duty weapon when the officer
allowed him to handle it. The boy’s parents filed a lawsuit against the cities of Chamblee and Norcross,
claiming that Heiberger’s position as a police officer and employment created a relationship with the boy, and
that the relationship caused the circumstances that created the fatality. The lower court decided against the
parents, stating that the state did allow such a lawsuit. The parents appealed. The appellate court agreed with
the parents and allowed them to pursue their negligence claims.

The appellate court stated that it was wrong for the lower court to decide that negligence did not cause the
boy’s death. The court noted that the City of Norcross should have “foreseen” that Heiberger would obtain
future employment as a police officer. Further, given Heiberger’s history of carelessness and inattentiveness,
Norcross should have known he would commit some safety infraction that could lead to serious injury or
death. Norcross negligently breached its duty to fully and accurately report Heiberger’s employment history.
Additionally, the court held that the City of Chamblee could not foresee that Officer Heiberger’s tendencies
would cause the boy’s death; however, they had access to the Norcross Police Department’s personnel file and
knew that supervisors in Chamblee observed him in the performance of his duties, where he continued a
pattern of inactiveness and carelessness.

This case illustrates what a plaintiff needs in order to prevail in a claim of negligence. Both employing
agencies had a duty to ensure that Heiberger performed his duties properly. The chief of police of Norcross
failed to inform Chamblee’s police chief about Heiberger’s tendencies and breached his duty, which ultimately
became the proximate cause of harm in the boy’s death. In this case the link of what was known by Norcross
became the proximate cause of the harm sustained by the youth. The concept of foreseeability is evidenced by
the fact that Heiberger’s poor performance was known, he continued his negligent performance, and it became
highly predictable that his actions would injure another. The cities of Norcross and Chamblee possessed such
knowledge and their failure to act on that knowledge was the proximate cause of the boy’s death.

Areas of Potential Negligence in Criminal Justice

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Police and correctional personnel come into contact with a variety of individuals— from the violent, the
intoxicated, and the mentally impaired, to the sober and sane. They provide myriad functions by virtue of their
24- hour operational availability. Statutes may mandate a certain police or correctional response to such
individuals. Examples of potential negligence are discussed below.

Negligent Operation of Emergency Vehicles

A majority of police work involves vehicle patrol. Patrol officers regularly respond to emergency calls. State
statutes authorize the use of police vehicles in emergency situations and limit how police officers may use their
vehicles. Police must follow the same traffic laws as ordinary citizens. Police are obligated to operate their
vehicles in a safe and reasonable manner in accordance with the law.

Even if police violate the emergency statute by pursuing an individual and the pursuit ends in an accident,
the officer may not necessarily have been negligent. For example, police officers were not liable for damages in
a collision that occurred after they chased an intoxicated motorist through a red light (Reenders v. City of
Ontario, 1977). The court determined that there was no reason to believe that the motorist would not have run
the red light absent the pursuit, because he was intoxicated and unaware that the police were pursuing him. In
State v. McGeorge (1996) the court held that an officer was not negligent for engaging in a high- speed pursuit
of a fleeing vehicle that collided with an oncoming car. The court held that reasonable minds could differ as to
whether a continued high- speed pursuit was justifiable.

Many courts require a higher standard than mere negligence in pursuit cases. The court in a Maryland case
held that gross negligence was the standard required when reviewing police conduct (Boyer v. State, 1991). The
court determined that, although the trooper may have driven at high speeds on a road with heavy traffic in an
effort to apprehend an intoxicated person, he did not act with wanton and reckless disregard for the safety of
others. In North Carolina the standard for liability in police pursuits is gross or wanton negligence in cases in
which the fleeing vehicle injures another (Parish v. Hill, 1999). An officer engaged in a high- speed pursuit that
lasted for 10 miles in the early morning during light traffic. The officer did not force the fleeing car off the
road, nor did he attempt to overtake it, therefore he was not grossly negligent. In Morris v. Leaf (1995) the Iowa
Supreme Court ruled that liability for injuries to motorists caused by a collision with a pursued vehicle can
only be based on reckless conduct by police in pursuits, not mere negligence. Neither the officer nor the city
was liable when the pursued vehicle had already been in a hit- and- run accident and when pursuit of the
already speeding car was designed to prevent further harm.

Consider, however, City of San Antonio v. Schneider (1990) in which the court ruled that “reckless disregard”
meant something between ordinary and gross negligence. The court held that the officer acted with reckless
disregard when he was speeding on a seemingly non- emergency call, knowing that a street was dangerous
when wet, filled with stranded cars, and that he would have insufficient time to stop.

The Michigan Supreme Court, in Robinson v. City of Detroit (2000), ruled on the issue of whether police
officers in vehicle pursuits face civil liability for injuries sustained by passengers in vehicles fleeing from the
police when the fleeing car causes an accident. A 15- year- old boy was being brought home from work by a
friend when his friend (the driver) began weaving from one lane to another. Police officers who saw this
activated their overhead lights, and the driver sped off with the police officers in pursuit. The pursuit ended
when the driver struck another vehicle. The 15- year- old passenger was killed in the collision. His estate sued
the City of Detroit and the officers. The court held that the police first owe a duty to innocent passengers and
pedestrians, but owe no duty to passengers who themselves are law violators, whether they help bring about
the pursuit or encourage flight. The City of Detroit was entitled to judgment without trial because it was not
reasonable to conclude that the officers’ pursuit caused the youth’s death. The police vehicle did not hit the
fleeing car, did not physically cause another car or object to hit the fleeing car, nor did it physically force the
fleeing car off the road or into another vehicle or object. The individual officers were entitled to immunity
because their actions were not the proximate cause of the victim’s injuries. The court concluded that “innocent
persons who are injured as the result of police chases may sue an individual police officer only if the officer is
‘the proximate cause’ of the accident.” The plaintiff did not have a cause of action against the others.

Operating a police vehicle in a reckless manner during a pursuit may not always be immunized. In Mumm v.
Mornson (2006) an officer engaged in a high- speed pursuit of a female motorist (Mornson) who later was
determined to be mentally disturbed. Mornson had been driving erratically and the officer’s supervisor had

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instructed him to monitor the vehicle and later to discontinue the chase, which was in accordance with the
department’s policy. The court held that, while Mornson’s driving was potentially dangerous, she hit no
vehicles or pedestrians, nor overtly threatened the officers or others, and did not commit any crime. She had
actually avoided other vehicles and was not driving erratically at the time the officer rammed her vehicle. The
court ruled that the officer recklessly used his vehicle, when instructed to monitor and discontinue the chase,
in violation of policy and such conduct was not immunized. There was both a common law and statutory duty
of care to a passenger and negligence was actionable.

Moreover, the court ruled against an officer engaged in pursuit in Hudson v. City of Chicago (2007). The
officer assisted in a pursuit in which backup had not been requested but was merely providing his services
should the need arise to enforce or execute the law. According to the court, liability attached against the officer
as violation of the agency’s pursuit policy was evidence of willful and wanton conduct.

In Plaster v. City of St. Paul (2011) officers were involved in a high- speed pursuit of an individual suspected
of selling drugs. Several minutes into the pursuit the suspect struck a vehicle and a woman standing behind it
was hit and seriously injured. The woman lost her leg as a result of the crash. She filed a lawsuit for negligence
to recover damages. An appellate court in Minnesota ruled that the defendant officers were entitled to qualified
immunity under state law for the exercise of discretion in deciding whether or not to initiate and continue the
pursuit of a suspect attempting to flee arrest for a serious drug felony. The court found that there was no
evidence that the officers acted willfully or maliciously, which would have defeated their official immunity
defense.

Wrongful Death

Wrongful death torts are acknowledged in every state and usually are the result of allegations of unjustified
actions by an officer. Generally, when a death occurs during police intervention, transport, or custody, a
wrongful death case is likely to result. The lawsuit is filed on behalf of the deceased by the estate, surviving
family members, or a guardian. This type of liability action alleges that the government entity was
intentionally or grossly negligent to the needs of the deceased. In wrongful death actions against police
officers, the plaintiff generally asserts that the officers’ actions or the department’s customs and policies (or
lack thereof) were the proximate cause of the death. These lawsuits attempt to recover damages for conscious
pain and suffering; loss of financial support; loss of comfort, society, and companionship; and funeral expenses.
The lawsuit may also claim that the criminal justice agency conspired to cause the death of the deceased
and/or covered up the death with an inadequate internal investigation. Each case will obviously be comprised
of numerous variables for the plaintiff to attack.

The claim must be based on an established tort theory. Examples include deaths from lethal force incidents,
fatal vehicle pursuits, in- custody suicides, restraint deaths after a use- of- force altercation, and claims arising
from delay or denial of medical care for an arrestee or prisoner. In Fruge v. City of New Orleans (1993) the
estate of a diabetic arrestee who died while in police custody brought a wrongful death claim against the city.
When arrested, the prisoner appeared intoxicated and was placed in an isolation cell, where he later was
observed foaming at the mouth. He was transported to hospital and died several hours later. The attending
physician stated that the man had a moderately enlarged liver, which can cause sudden death. The court found
the officers to be negligent in their decision to incarcerate because they owed a duty to the prisoner to protect
him from harm and preserve his safety. The court concluded that the city had failed in its responsibility
(breached its duty) by not ascertaining the arrestee’s medical condition and transporting him to a hospital. The
arrestee’s intoxication triggered the need for a higher level of care by the police.

An emerging area of liability that is occasionally addressed in state court involves unexpected deaths in
police custody after restraints and varying levels of force have been used to control the violent person. In
McCrumb v. Kent County et al. (2002) the estate of a mentally impaired man filed state tort claims for gross
negligence and assault and battery after he was restrained by eight officers and died. McCrumb was being
admitted into a private mental health facility for treatment for bipolar disorder and began hallucinating. He
assaulted two security personnel and began destroying offices and threatening nurses, physicians, and other
staff of the facility. Two Kent County deputies responded to a 911 call and initially attempted to control
McCrumb in the hallway of the facility by talking to him. He charged the deputies and one directed two bursts
of pepper spray at him, which was ineffective. McCrumb fled back into the facility, the county sent more

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deputies, and two other agencies dispatched officers. In total, the county sent two more deputies and a
lieutenant, while three officers responded from the two other agencies.

After planning a response, five of the officers and the lieutenant entered the facility as McCrumb began
advancing toward an office where staff of the facility had barricaded themselves. The officers engaged
McCrumb and two other officers applied three short bursts of pepper spray to McCrumb. The spray was
ineffective and he charged the officers, striking two of them in the chest and head. The officers used control
holds and their weight to subdue him. The officers placed McCrumb on the ground, two officers held his legs,
two other officers controlled his arms, while another officer controlled his head as he attempted to bite the
officers. Only one officer had partial weight on his back and the officers were able to restrain McCrumb’s
hands with two sets of handcuffs. McCrumb struggled and a belt was secured around his ankles. He began to
calm down and a nurse left to retrieve an injection for him. Within a few seconds the officers noticed that
McCrumb had become unresponsive, radioed for emergency medical care, removed the restraints and belt, and
initiated life- saving procedures. Emergency medical personnel responded, rendered medical care, and
transported McCrumb to the hospital where he died 15 minutes later.

The family filed a lawsuit and the court, seven years later, issued summary judgment for all of the officers.
The court ruled that the officers had a duty to take McCrumb into custody for mental health treatment and had
the right to use reasonable force to accomplish the task. The court stated that the officers also had the right to
protect themselves and that the force they used was not excessive and was consistent with the degree of
resistance they encountered. There was a need to control McCrumb and a need to protect the staff of the
facility. The court further opined that officers did not act recklessly as to demonstrate a substantial lack of
concern for the welfare of McCrumb. In fact the officers had done the “exact opposite,” the court noted, and
held that the officers’ conduct did not amount to gross negligence.

A more common wrongful death action brought against police officers involves police shootings. In Mathieu
v. Imperial Toy Corp. (1994) the Louisiana Supreme Court overturned a $4 million award against the city for
officers’ shooting of a mentally impaired individual. The individual had pointed a realistic toy gun at officers
and they responded by shooting him. The estate brought a wrongful death and excessive force action against
the officers, claiming that the officers should have known the gun was a toy. In another case the jury awarded
$3.6 million in damages to the estate of a man who was shot and killed by a police officer during a traffic stop
(Bodan v. DeMartin, 1994). The family argued that the deceased had placed his hands on the steering wheel
when the officer stopped him, while the officer stated that the driver had reached under the front seat, causing
the officer to believe that the driver was reaching for a weapon and causing him to fear for his life. A more
detailed discussion on excessive force claims arising out of lethal and less- than- lethal force incidents will be
provided in Chapter 10.

In Lopez v. City of Los Angeles (2011) the estate of a young child who was accidently shot and killed by an
emergency response team (ERT) sought damages for a wrongful death. The child’s father, who was using and
selling cocaine, used his 19- month- old daughter as a hostage and held up in his auto body shop with firearms.
He threatened to kill her, himself, and anyone else who entered the premises. Officers of the ERT responded
and, after attempts to negotiate the release of the child failed, they entered the shop to rescue the girl and
accidentally shot and killed her. The father had shot at the officers first and they were returning fire. The
Appellate Court of California determined that the officers acted reasonably under the circumstances.

A recurring theme of wrongful death claims emerges from police pursuits. These claims not only allege
negligence of the police officers performing the pursuit, but allege that such performance by the police created
the proximate cause of death of the person in the fleeing vehicle or an innocent bystander. Some allegations
claim that if the police had not initiated the pursuit the person would have never eluded the police and that the
pursuit was recklessly performed, which led to the death of that person or third party.

In City of Jackson v. Perry (2003) a bank employee summoned Jackson, Mississippi, police to report that a
woman attempted to pass a forged check. Although the bank employee attempted to stall her, the woman ran
outside to her car. Police arrived and observed the woman run to the only car in the parking lot and quickly
drive away. A rookie and his field training officer followed the woman and a second patrol car joined in the
pursuit. The woman sped through highly populated neighborhoods at speeds in excess of 80 miles per hour and
on one occasion ran a red light. The patrol cars followed at 55 miles per hour. The officers in the first patrol car
stated that they had stopped chasing her but continued to follow only to obtain her license plate number.

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Within one minute of the pursuit beginning the woman crashed into another person’s car, killing them. While
trying to flee on foot, the officers subdued the woman and arrested her.

Perry’s estate filed a wrongful death lawsuit against the city and the woman. The family alleged that the
officers acted in reckless disregard of public safety and violated departmental policy, which authorized a
pursuit only when an officer knew a felony had been committed. At trial the judge ruled in favor of the estate,
finding that the officers acted with reckless disregard for public safety, and awarded $1 million in
compensation to the family. The judge allocated 50 percent fault for the accident to the city and the remaining
50 percent to the woman, who ultimately settled with the estate. The judge later reduced the award against the
city to $250,000, the limits of the city’s insurance.

The city appealed the decision. The state appellate court affirmed the lower court’s verdict, holding that the
city was not immune under state law that protected police activities “unless the employee acted in reckless
disregard of the safety and well- being of any person not engaged in criminal activity at the time of the injury.”
The court determined that the officers could have parked their patrol car behind the woman’s car when they
first entered the parking lot, thereby blocking her exit. The court also determined that the officers could have
obtained her license plate number but instead engaged in a high- speed chase without knowing the amount of
the check and not knowing whether she had committed a felony, thereby violating the department’s policy.
The court held that the officers performed the chase in a reckless manner by speeding through highly
populated residential areas.

Suicides in lockups, jails, and prisons have spawned numerous wrongful death actions under negligence
theories. In Title v. Mahan (1991) the estates of two deceased pretrial detain-ees brought a wrongful death
claim under state law. The two had committed suicide in the jail, and the claim asserted that jail personnel
failed to prevent the suicides. The court determined that jail personnel were liable for failing to provide
adequate supervision for the detainees. In Moore v. City of Troy (1992) a jail detainee hanged himself with his
own T- shirt shortly after being jailed. His belt, shoelaces, outer shirt, and pants were removed. Jail personnel
had documented security checks and had made such a check 11 minutes prior to the suicide. The court
determined that jail personnel had complied with all procedures and did not impose liability. In De Sanchez v.
Michigan Department of Mental Health (1997) a defense of proper supervision did not defeat the “public
building” exception to immunity when a suicide was facilitated by the dangerous design of a public restroom.
The main liability issues of the case centered on negligent supervision and design of the building. The plaintiff
argued that the bathroom was poorly designed because it contained “open” structures in which people could
hang themselves. The court did not rule on the issue of whether a true defect existed.

After a suicide in a detention facility the estate of the deceased filed a lawsuit against the county and jail
officers in Gray v. Tunica County, Mississippi (2003). The detainee committed suicide in a holding cell by
tearing a portion of his jumpsuit into several strips. The estate alleged that the detention officers failed to
perform their security checks as required by policy when the detainee was placed on a suicide watch, and that
such inaction was the proximate cause of the detainee’s death. The court granted summary judgment to the
county, holding that the policy was not related to the suicide of the detainee, who was placed in a new cell
designed for medical and suicide watch purposes. The court ruled that the policy involving intermittent checks
was reasonably related to the legitimate purpose of protecting detainees from harm. The detention officer had
checked on the detainee about an hour after he was placed in the new holding cell and the officer returned 30
minutes later to discover the detainee unconscious in the cell. The court reasoned that the suicide was
unforeseeable and that it was doubtful that the detainee could have been helped, even if the officer had entered
the cell immediately upon noticing that the detainee had altered his jumpsuit and was lying on the floor.

In Rentz v. Spokane County (2006) the estate of a detainee who was murdered by two other detainees in a
county jail sought to recover damages from the county under Washington’s wrongful death and survival
statutes. The court denied the estate’s claim under Washington law, holding that the estate failed to establish
standing. The court, however, allowed the estate to amend the complaint under § 1988 for violations of the
detainee’s constitutional rights under the Fourteenth Amendment. The court determined that the jail officers
and nurses were not immunized because they were involved in the placement of the detainee in the dormitory
with the other detainees. As such, the estate was allowed compensation for loss of companionship with their
adult son and it was held that the detainee’s substantive due process rights were violated.

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Failure to Protect

There is no general civil duty to prevent a crime, even in high- crime areas (Calogrides v. City of Mobile, 1985).
This means that police are not liable for failing to protect the victim of a crime. This is in accord with the
public duty doctrine. The doctrine was established by the United States Supreme Court in South v. Maryland
(1896). An individual who was victimized by a mob requested protection from the sheriff’s office. The sheriff
refused, and the individual was seriously injured and filed a lawsuit against the sheriff. The Court held that the
sheriff committed no misfeasance or nonfeasance to the person injured and liability failed to attach. Most
states recognize this doctrine, and there is no liability for harm or injury when the police fail to protect the
general public. The public duty doctrine insulates police from liability when members of the general public are
harmed or injured and desire to file a lawsuit against the police for failure to protect. This helps to enhance
discretionary decision- making on the part of the police and helps in reducing the risk of lawsuits for these
types of actions.

Generally, police and correctional personnel have a duty to protect those under their control and custody.
Numerous lawsuits have emerged from this “special relationship” doctrine. States define a “special
relationship” in varying ways, but the concept basically means that criminal justice personnel owe a duty to
the particular individual in their custody, rather than to the general public. Factors that create a special
relationship include actual knowledge of a dangerous condition or situation (foreseeability), and any statute,
rule, or policy that requires officers to perform and that can be reasonably said to be for the protection of the
members of society. Common examples include failing to respond to a call, failing to arrest in domestic
violence situations, failing to protect a witness or informant, failure to obtain medical assistance for an arrestee
or prisoner, failure to arrest a drunk driver, delayed response to a call, failing to summon assistance, and failing
to protect prisoners from themselves and other prisoners.

Liability did not attach against the city in Hamseed v. Brown (1995) for the stabbing of a woman by her
boyfriend. The boyfriend had escaped from an officer who was attempting to arrest him for violating a no-
contact domestic violence order. The officer allowed him to go upstairs to get some clothes, and he fled out a
window. The boyfriend later found his girlfriend and stabbed her several times. The boyfriend was not under
the officer’s control at the time of the stabbing. In State v. Powell (1991), merely receiving a subpoena to testify
in court did not create an affirmative duty to provide protection. A woman was subpoenaed to testify against
her ex- husband in a child abuse case. He poured gasoline on her and set her on fire. She sued the state,
claiming that it had a duty to protect her from him and failed in that duty. The court concluded that there was
no special relationship. Conversely, in Doe v. Calumet (1994) the court ruled that a police officer’s failure to
rescue a minor girl from being raped resulted in failure to protect liability. The mother of the child ran into the
street yelling for help while her daughter was being raped. The officer’s refusal to intervene constituted a
willful and wanton disregard for the safety of the child.

In Mills v. City of Overland Park, Kansas (1992) officers did not have a duty to take an intoxicated person
without a jacket into protective custody in winter weather. He came into contact with the police after he was
escorted out of a bar where there had been a disturbance. He walked away from the bar and was found frozen
to death the next morning in a field near the bar. A state statute that allowed (but did not require) emergency
detention of intoxicated persons was also not a basis for liability. In Kerr v. Alaska (1996) the state of Alaska
was found liable for negligent failure to prevent two prisoners from planning and carrying out, with the help of
others, the mail bombing of a house where an informant who helped to convict them was living. The court
awarded $11.85 million to the individual who lost his father in the explosion, which also severely injured his
mother.

Occasionally a plaintiff will file a claim that an officer’s failure to protect an arrestee in his or her custody
was the direct cause of the harm sustained and that such failure amounted to gross negligence. This is a high
standard to prove and many courts give deference to police officers when warranted. In Kruger v. White Lake
Twp. (2002) police took a woman into custody pursuant to her mother’s request, fearing that she posed a
danger to herself and others due to her level of intoxication. Responding to the call, the police learned that the
woman had an outstanding warrant issued for her arrest by a neighboring township. The police arrested her
and transported her to the White Lake Police Department to wait for her transfer to the adjacent township.
Lacking a vacant holding cell, the woman was left unattended in the booking room, where she was able to free

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herself from the handcuffs and escape. As she fled from the station she ran into traffic and was struck and
killed by an unidentified vehicle. The decedent’s family filed a lawsuit alleging gross negligence on the part of
White Lake Township’s officers. The lower court dismissed the claim and the estate appealed. The appellate
court affirmed the lower court’s decision, noting that the officers’ actions were not grossly negligent and that
the more direct cause of the woman’s death was her escaping from the police station, running into traffic, and
being struck by the car.

In Pappas v. Union Township (2010) an officer who served as a crash investigator was dispatched to the
scene of an accident that took place between a female motorist and a male motorcycle rider. The officer, who
observed the motorcycle rider lying face down after having been thrown and landing head first on the street,
believed that he was dead. The officer later claimed that the female motorist, though “a little shaken up,” had
told him that she was not injured. He handed back her driver’s license, registration, and insurance card and
suggested that she could leave her disabled car at the parking lot of a nearby gas station, which she did. The
officer returned to his vehicle to complete paperwork, and did not inquire as to how the motorist was getting
home or offer to assist her in doing so. The elderly female motorist declined an offer from the gas station
attendant to drive her home if she would wait there until closing time, and she stated that she could walk
home. As she began walking across the street she was struck by a hit- and- run driver, suffering serious
injuries, and was hospitalized for various surgeries and treatments until she died. A lawsuit against the
township and officer contended that they were responsible for her injuries at the hands of the hit- and- run
driver by “abandoning” and failing to protect her at the scene of the first accident.

The trial court and intermediate appeals court entered summary judgment for the defendants, finding them
immune from liability for the officer’s performance of discretionary acts at the scene of the first accident. The
court rejected an argument that the officer negligently performed ministerial duties in connection with the
accident, for which state law does not provide immunity, since the female motorist had not asked him to
provide aid. This was also not a case in which the motorist was plainly incapacitated, so that, even if the officer
was not exercising discretion, there was no evidence that he negligently performed a ministerial task.

False Arrest and Imprisonment

False arrest is the imposition of unlawful restraint upon another’s freedom of movement and requires willful
detention. It is an intentional tort and the intent lies in the act of arrest, not in the knowledge of falsity. An
officer who fails to ascertain with due diligence that the plaintiff is in fact the person named in an arrest
warrant is liable, regardless of the fact that the warrant sanctions the arrest of some person (Silver, 2017). The
elements of an action for false imprisonment are the detention of a person and the detention is unlawful. The
detention may be accomplished by actual or apparent barriers, physical force, a threat of physical force, or the
assertion of legal authority. Plaintiffs prevailing in false imprisonment cases have shown an intent to confine,
acts resulting in confinement, and knowledge of the confinement or harm (Brown v. Bryan County, Oklahoma,
1995). False arrest can occur when an officer arrests a person other than the one named in a warrant and, if the
warrant is illegal, providing false information to a magistrate. Liability is created when the officer obtains a
warrant with malice, knowing there is no probable cause (Malley v. Briggs, 1986).

Numerous lawsuits have been filed under state tort law for false arrest and false imprisonment. In Byrd v.
New York Transit Authority (1991) an award of $250,000 in compensatory and $125,000 in punitive damages
was granted to the plaintiff. He had sustained injuries as a result of false arrest, malicious prosecution, and
assault by transit officers during arrest. In Marshall v. District Court (1992) police officers assisted medical
personnel in restraining the plaintiff while an emergency mental health evaluation was performed. The officers
had advised her that she would be forcibly detained if she did not cooperate. She sued, claiming that the
officers had falsely imprisoned her. The officers were immune from liability because under state law they were
responding to a call for assistance and acted in the belief that she was mentally ill and in need of confinement.
In Diogaurdi v. City of New Rochelle (1992) the existence of a domestic protective order, as well as the wife’s
complaint that her husband was harassing her, gave the police a defense in a false arrest claim filed by her
husband after he was arrested for violating the order. Liability did not attach for the arrest.

Courts routinely examine claims of unlawful detention. The court’s decision in Lopez v. City of Chicago
(2006) provides an instructive example of police detaining a prisoner without affording him a hearing within a
reasonable period of time. An arrestee who was held shackled in an interrogation room for four days brought a

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claim in accordance with the Fourth and Fourteenth Amendments for unlawful detention and emotional
distress against the City of Chicago. The arrestee presented evidence that detectives kept him shackled for four
days in a small, windowless room and deprived him of food, drink, water, sleep, and the use of a bathroom
until he repeatedly screamed for assistance. The arrestee claimed that there was no sink in the room, he was
fed only one bologna sandwich, was made to undergo two lineups, and was forced to make a false confession,
which did not match the details of the crime. The detectives denied the allegations. The district court ruled in
favor of the detectives, but the appellate court held that the officers violated the arrestee’s Fourteenth
Amendment right to a prompt judicial probable cause hearing, amounting to an unlawful detention. The
arrestee was arrested for a murder that he did not commit.

Under state and federal law the primary action for false arrest and imprisonment is the illegal detention of
an individual without lawful process or by an unlawful execution of such process. The United States Supreme
Court held in Wallace v. Kato (2007) that an unlawful detention (detention without legal process) of an
individual equates with the tort of false imprisonment and is remediable. The Court also clarified that the
essential elements of false imprisonment include the detention or restraint of one against his or her will, and
the unlawfulness of the detention or restraint.

Officers failing to thoroughly investigate a correct residence to respond to a call or to effect an arrest may be
held liable for false arrest and imprisonment. In Marlowe v. Pinal County (2008) an officer’s arrest was not
immunized when the court held that he responded to an incorrect residence and arrested and lodged the wrong
person. A deputy was dispatched to a residence to investigate an emergency call about a family fight in
progress. The deputy responded to the Marlowe residence instead of responding to the Schwartz residence,
which was 11 houses away. Dispatch gave the deputy a description of the suspect and the deputy learned that
he would be looking for a 73- year- old man who was severely intoxicated and belligerent. The wife, who
called 911, had locked herself in the bathroom.

At the house the deputy noted that it was dark and quiet, and that the Marlowes were in bed sleeping. The
deputy knocked on the front door and did not receive a response. He then opened the back gate, moved to the
back porch and knocked on the sliding glass door. Hearing the knocking, Mr Marlowe got out of bed and went
to the back door and told the deputy to get off of his property. The deputy instructed him to step outside
immediately to avoid being in more trouble than he was presently in. Marlowe put on a pair of pants, looked
out the window, and observed that the person was indeed a deputy. Marlowe exited the house, complied with
the deputy’s commands, and handcuffs were secured on him without incident. Marlowe was placed in the
patrol car and other deputies responded. They informed the deputy, as did dispatch, that he was at the wrong
address but the deputy maintained he was at the correct address and could smell alcohol on Marlowe. The
deputy’s supervisor arrived and determined that the deputy had arrested and detained the wrong person and
released Marlowe. The Marlowes filed a lawsuit for false arrest and detainment and the court ruled in their
favor. The court held that the deputy should have performed a more thorough investigation before subjecting
Marlowe to a forceful arrest and detention.

With a high degree of certainty, the courts will not protect officers or prosecutors when they deliberately file
false charges. In McGhee v. Pottawattamie County (2008) investigators were involved in an investigation of
several suspects on charges of distributing illegal substances. Unable to secure actual evidence, prosecutors and
police investigators knowingly made false charges and fabricated false evidence, culminating in false arrests.
Under Iowa Code § 669.2, the prosecutor and investigators were not protected by state sovereign immunity
because these acts were outside the scope of employment and occurred during the investigative phase.
Qualified immunity was absent because procurement of tainted evidence for use at trial violated clearly
established law.

In Virginia v. Moore (2008) the United States Supreme Court examined the status of state law when a law
enforcement officer makes an arrest based on probable cause when such state law prohibits the arrest, and
examined whether evidence seized should be suppressed. The question before the Court was: does such action
by a police officer violate the Fourth Amendment? Believing a motorist (Moore) was driving with a suspended
license, two police officers performed a vehicle stop. Upon determining that Moore’s license was indeed
suspended, the officers arrested him for the misdemeanor offense. He was searched and the officers found 16
grams of cocaine. Moore was later convicted of possession with intent to distribute. He appealed the
conviction, arguing that, under Virginia law, he should have received a summons as opposed to being arrested

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and searched, and as such the arrest was unlawful and the evidence discovered should be suppressed. The
Virginia State Court agreed, concluding that the search violated the Fourth Amendment. The United States
Supreme Court agreed to hear the case.

In a unanimous decision the Court overturned the Virginia Supreme Court, ruling that the officers had
probable cause to arrest Moore and that the search incident to arrest was also lawful. The Court held that an
arrest for even a minor crime committed in an officer’s presence is always reasonable under the Fourth
Amendment and additional state law protections prohibiting custodial arrests under certain circumstances
were irrelevant. The Court reiterated that they “ruled over 50 years ago that officers having probable cause to
believe that crime has been committed in their presence may make an arrest and perform a search in order to
safeguard evidence and for officer safety.” Virginia’s decision to exclude the offense within the criminal code
did not render the officers’ actions unreasonable under the Fourth Amendment. The Court also stated “it is not
the province of the Fourth Amendment to enforce the state law.” The Court’s decision in Knowles v. Iowa
(1998) was distinguished because an actual arrest, not merely the issuance of a citation, had occurred.

In Thomas v. City of Galveston (2011), Thomas and his wife decided to remain in their home during a
hurricane because in a former hurricane his house had been vandalized. Several days after the hurricane had
ended, Thomas purchased a generator and placed it on a flatbed truck and parked it on the street in the front of
his home so it could provide power to his house and to a few neighbors’ homes. One night Thomas heard his
dog barking and looked out the front window, observed several flashlights moving around the generator, and
yelled out several times for the persons to show themselves. The individuals did not respond and Thomas
retrieved his rifle, opened the front door, and yelled at the persons to identify themselves while pointing the
barrel down at the ground. Suddenly the individuals shined their flashlights in Thomas’s eyes, identified
themselves as Galveston police officers, and directed Thomas to put his weapon down. He complied and placed
his hands above his head.

The three officers rushed the porch and threw Thomas down the five stairs to the sidewalk. Thomas
screamed in pain and was immediately placed in handcuffs, which were placed tightly around his wrist.
Thomas did not resist arrest. While on the ground the officers kicked Thomas in the back, shoulders, and in the
head several times and he lost consciousness. An officer picked Thomas up by the chains of the handcuffs,
which caused severe damage to the joint. The officers transported Thomas to jail, where he regained
consciousness and was in severe pain. Due to the hurricane there were no hot water or toilet facilities or
phones operational, and he was not offered any medical attention. After two days a nurse examined Thomas
but was unable to treat him. Bail was set at $40,000 and Thomas was released. A bond hearing was held two
weeks later and the bond was increased to $100,000. Two days later the prosecutor dropped the charges and the
judge agreed.

Thomas filed a lawsuit claiming false arrest, excessive force, and denial of adequate medical treatment. The
court rejected the city’s motion to dismiss the case. The court agreed with Thomas that he had a legitimate
right to protect his property and that the officers lacked probable cause to arrest him. The court concluded that
Thomas’s actions were provoked by the officers’ conduct, an officer would have known that Thomas was only
attempting to rightfully protect his property, and found that on this basis the officers lacked probable cause to
arrest him. The court noted that, since the officers made a false arrest, the force used against Thomas, who did
not offer any resistance, was excessive. The claim of denial of medical care was also supported as the court
noted the officers intentionally ignored Thomas’s request for medical care and knew that he had lost
consciousness. The behavior of the officers amounted to a wanton disregard to the serious medical needs of
Thomas and the beating delivered by the officers could also not escape the officers’ attention.

Malicious Prosecution

Malicious prosecution claims are made by a plaintiff who alleges that he or she was illegally prosecuted in a
criminal or civil proceeding that was instituted for an improper purpose and without probable cause. The
plaintiff must show: (1) the institution or continuation of original judicial proceedings, either criminal, civil, or
administrative; (2) by or at the request of the defendant, (3) the termination of such proceedings in the
plaintiff’s favor; and (4) the suffering of injury or damage as a result of the prosecution (Plitt, 1997). Proximate
cause is also critical in malicious prosecution cases if the initiator of a criminal proceeding loses control of it
due to the actions of a prosecutor or judge— actions that may be deemed to supersede the original complaint.

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Malice is a core element of malicious prosecution and involves an intentional wrongful act done without
legal justification. Malice may consist of any improper and wrongful motive for bringing a criminal proceeding
and does not require hatred of, or ill will toward, the plaintiff (Davis v. Muse, 1992). Further, a lack of probable
cause for the institution of the original proceeding must be shown. The court in Stitle v. City of New York
(1991) ruled that a claim of malicious prosecution can arise only after an arraignment, indictment, or some
other evaluation by a neutral body that the charges were warranted. The claim cannot arise from an arrest
only.

In Carver v. Hartville Police Department (1992) police officers and the police department were held not liable
for malicious prosecution of a woman for aiding and abetting her son in a drug distribution organization.
There was no evidence of malice and there was probable cause for the arrest. The officers had made
observations as well as controlled buys. Strong v. Nicholson (1991) allowed circumstantial evidence to show
that a prosecution was brought with reckless disregard and to obtain property allegedly in dispute, especially
when the defendants had been legally advised to bring a civil lawsuit. Thus malice was proven.

Malicious prosecution actions are generally not subject to qualified immunity found in many states,
particularly where “bad faith” or acting outside the scope of employment is involved (Kapper v. Connick, 1996).
In McDaniel v. City of Seattle (1992) prosecutorial immunity was not applicable to immunize a city against
malicious prosecution by police officers, especially where false representations may have been made to the
prosecutor.

Frequently a plaintiff may combine claims of false arrest and malicious prosecution in one lawsuit. In Wilder
v. Village of Amityville (2003) the plaintiff Wilder and others protested the removal of a tree in the village.
Citing pro- tree environmental and religious concerns, she allegedly attempted to block municipal workers
from cutting the tree down by standing in the way. A police sergeant ordered her to move on three occasions
and she refused to do so. The sergeant arrested her for obstructing a governmental function in the second
degree. Wilder filed a lawsuit and claimed that the sergeant used excessive force when he tightly applied
handcuffs on her wrists, resulting in inflammation and soreness to her wrists. She claimed the sergeant denied
her medical attention. She also filed claims of false arrest, malicious prosecution, and interference with her free
speech rights.

The court granted judgment to the village and the sergeant, noting that the plaintiff’s claim of excessive
force failed because her allegation of sore, yet uninjured, wrists was not enough to be considered unlawful
conduct in the lawful arrest situation. Further, the court noted that the sergeant made the arrest based on
probable cause and that her false arrest and malicious prosecution claims failed as well. The court ruled that
the law prohibited a person from intentionally preventing public servants from performing an official function.
Finally, the court held that the plaintiff failed to prove that the village or the sergeant prevented her from
expressing her pro- environmental or religious views through police brutality or abuse of the legal process.

In Allen v. City of New York (2007) a detainee filed suit against the city and officers, claiming a violation of
his constitutional rights for false arrest and malicious prosecution arising from a beating administered by
officers during escort to a cell. The court ruled that the arrest, confinement, and prosecution were lawful under
New York law. The court, however, ruled that other officers should have intervened to keep an officer from
banging the head of the detainee against a wall and denied a motion for qualified immunity. Further, the court
denied a criminal complaint for assault filed by the officer, who claimed that the detainee assaulted him,
holding that the officer committed malicious prosecution when he filed the false charge against the detainee.

Assault and Battery

Many civil actions arise from claims of assault and battery, because the use of force is inherent in police and
correctional work. Such claims may arise from an arrest, because physical force is often necessary to take
custody of the arrestee. In correctional facilities, some physical force is used to move prisoners, search
prisoners, or prevent prisoners from harming themselves or others.

Assault is an intentional attempt to physically injure another, coupled with the present ability to complete
the intention. There must be an intent to cause harmful contact, or the fear thereof, with the person of another.
Acting recklessly or wantonly is generally not sufficient for an assault. Generally, words alone are insufficient
to constitute an assault.

Battery is a voluntary act that results in harmful or offensive contact with another. It is not necessary that

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the offensive or unpermitted touching actually cause physical harm; it is sufficient if the contact is offensive.
Under this definition, every time an officer uses force to control an arrestee or prisoner there is the potential
for this claim to be made when the force used is unjustified. The distinction between assault and battery is that
assault is conduct that results in an individual fearing an imminent battery, while battery pertains to unlawful,
offensive, unwar-ranted touching, even if slight (del Carmen, 1991). The two terms are normally applied
together, because in many jurisdictions assault is an attempted battery (Johnson v. Suffolk County, 1997).

In Jackson v. North Carolina Dept. of Crime Control (1991) liability attached when an officer used a
blackjack (a short, leather- covered piece of lead) on an intoxicated, handcuffed arrestee. The arrestee was
restrained and cooperative, and using force in this manner was regarded as negligent. Using a weapon in an
unreasonable manner may give rise to liability. In Moody v. Ferguson (1989) a state trooper was found to be
liable for assault under South Carolina law. The plaintiff was stopped by a state trooper, and when asked for
his driver’s license he placed the car in reverse and fled from the trooper. The trooper unholstered his weapon
and ran after the driver. The driver moved the car toward the trooper and the trooper fired his weapon, hitting
the rim of the tire. The court concluded that the trooper used his weapon in a negligent, unreasonable manner
and was liable for assault. In Baker v. Chaplin (1994) the court concluded that hitting a political demonstrator
with an impact weapon while he was complying with police instructions and not resisting was not only
excessive, but was deadly force. The impact weapon was thrust into the chest of the demonstrator and the
court determined that this constituted deadly force and violated state law and § 1983.

The estate of a detainee confined in a county jail filed a lawsuit under the state tort claims act and § 1983,
claiming that the detainee was beaten to death by detention officers, in Pizzuto v. County of Nassau (2003). The
family sued the officers, the supervisors, and the county. The detainee had been sentenced to 90 days for
driving under the influence of methadone, a misdemeanor. While in a holding cell the detainee boisterously
complained that he needed treatment for his narcotic addiction and a heated argument ensued between the
officers and the detainee. The supervisor directed the officers to enter the cell to control the detainee. The
officers entered the cell and punched and kicked the detainee in his face, legs, and torso for several minutes.
An extensive cover- up followed and two days later the detainee collapsed in his cell. He was transported to
hospital where he died from his injuries several days later.

The officers pleaded guilty to assault and conspiracy and were convicted. The court ruled in favor of the
estate’s claims and liability attached against the officers and the other officers who stood by, watched, and
failed to intervene. The court held that the supervisor was also liable for his personal involvement and for the
acts of the officers.

In Slusher v. Carson (2007) a civil action was brought against an arresting deputy for an alleged assault. To
assist in enforcing a divorce judgment, two deputies were dispatched to a barn where farm equipment was to
be retrieved by the husband. The former wife challenged the reason why her former husband and deputies
were on her property. One of the deputies showed the court order to the former wife (Ms Slusher) and she
began to review it while the husband entered the barn. Ms Slusher began to protest the entrance into the barn,
the deputy asked for the order back, and she withdrew her hand away from the deputy. The deputy asked for
the order again and she refused to comply. The deputy reached for her arm and, according to Ms Slusher, the
deputy pressed his thumb into her hand and palm and squeezed her wrist, twisting her fingers backwards. She
screamed, saying “that was her bad hand.” Ms Slusher filed suit in accordance with Michigan law, claiming the
deputy assaulted her.

The deputy argued that he was immune from lawsuit under Michigan’s Governmental Tort Liability Act
and that his behavior failed to amount to gross negligence. The Act defined gross negligence as conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury results. The court held that the
deputy’s actions were reasonable under the circumstances. By Ms Slusher’s own admission she failed to
comply with the deputy’s instructions. The court held that it was objectively reasonable for the deputy to grab
Ms Slusher’s hand after she failed to comply with the instructions and that the deputy would not know Ms
Slusher had a bad hand and that, therefore, his actions would cause her harm. The court awarded summary
judgment on behalf of the deputy.

In Becker v. Porter County (2009) deputies were executing an active warrant for Becker’s arrest for violating
a domestic violence order. The warrant had been rescinded but not entered into the computer prior to the
deputies serving it. Becker demanded that there was a mistake and entered his house to retain paperwork to

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show the deputies. The deputies followed him into the house without permission. A dispute of the facts varied
between Becker’s account and that of the deputies. Becker claimed that officers assaulted him— one deputy hit
him in the face and he fell into a wall, another officer tackled him, and a third used a Taser on him eight times
for no reason.

The deputies claimed that Becker ran into the kitchen against their instructions, they wrestled with him,
Becker continued to fight them, and a deputy activated the Taser once on his thigh. The deputies also claimed
that Becker fell to the floor, continued to resist, kicked the Taser from the hand of the deputy, and after the
struggle they were able to control and restrain him. Becker was transported to the hospital, treated, and then
transported to the jail. Later Becker was found not guilty for violating the domestic violence order but found
guilty of battery of a law enforcement officer and resisting arrest. He filed claims of assault against the
deputies from injuries sustained during the service of the warrant, which was found to be rescinded at the time
of arrest.

Becker argued that the deputies violated his rights by unreasonably using the Taser and other force
measures. As a result of his injuries, he argued, the deputies did not know how and when to properly apply the
Taser and the county failed to adequately train them in the proper use of the Taser. The court granted the
defendant’s motion to dismiss the claims of assault, finding that it was reasonable to apply the Taser when
Becker actively resisted in the kitchen, where numerous potential weapons were present. Claims of failure to
train were also dismissed.

In the course of performing their duties, correctional officers have also been sued for claims of assault. In
Reid v. Wakefield (2007) a prisoner claimed that, while confined in a state correctional facility and while he
was being escorted to the shower, several officers assaulted him. The prisoner claimed that as he approached
the shower his hand slipped from the handcuffs and the officers threw him against a gate and slammed him to
the floor. He claimed that another officer choked him from behind and others kicked and punched him. The
prisoner claimed that he sustained injuries and was left untreated in an adjustment cell. The prisoner filed an
assault claim and the officers filed a motion to dismiss. He also filed a claim against the officers’ supervisors for
failing to prevent the assault. The court granted the motion to dismiss against the supervisor, noting that he
was not at the shower at the time of the alleged incident and personal involvement was required for liability to
attach. The court also dismissed the assault claim filed against the officers as there was no credible evidence to
support the assault charge against the officers. A more complete discussion of liability issues surrounding
claims of excessive force will be presented in Chapter 10.

Federal Tort Claims Act

As discussed above, tort actions asserting misconduct on the part of police officers or correctional personnel
are brought under state tort law. An individual bringing an action against a federal agent, however, cannot file
an action under state tort law theories, but must file a claim in accordance with the Federal Tort Claims Act (28
U.S.C. § 1346 [b] and §§ 2671–2680). The FTCA waives the immunity of the federal government but not its
employees. Federal employees are responsible for ensuring that the rights of individuals are protected, just as
their state and local counterparts are; however, they may not be sued under state tort law or § 1983. A plaintiff
suing a federal officer must base his or her action on a complaint arising out of the scope of the federal officer’s
employment (Simmons v. United States, 1986) and must file his or her complaint in accordance with the FTCA.
The FTCA authorizes the partial waiver of sovereign immunity from the federal government. A lawsuit filed
under the FTCA cannot be based on a constitutional violation, but must be based on tort claims (del Carmen,
1991).

Plaintiffs filing claims against federal employees do so under provisions set forth in the United States
Supreme Court’s decision in Bivens v. Six Unknown Federal Narcotics Agents (1971). Bivens was restrained
with handcuffs, searched, and arrested on drug charges while federal agents searched his apartment for
evidence of drug violations. The search was conducted without a warrant or probable cause, thereby violating
his Fourth Amendment rights. Bivens sued the agents, claiming mental suffering and damages from the
invasion of his privacy. The Court agreed with Bivens and concluded that the agents were acting within the
scope of their employment, giving rise to a cause of action.

A Bivens action may only be brought against federal employees— not the federal government (Federal

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Deposit Insurance Corp. v. Meyer, 1994). Plaintiffs filing an FTCA claim must do so within two years after the
violation (28 U.S.C. § 2675 [a]). The Supreme Court has specifically upheld the bringing of Bivens actions for
violations of the Fifth Amendment’s due process clause (Davis v. Passman, 1979), and for federal prisoners
claiming Eighth Amendment violations (Carlson v. Green, 1980; Farmer v. Brennan, 1994).

In Papa v. United States (2002) the widow and children of an alien who had been killed by another detainee
while being held by the Immigration and Naturalization Services (INS) brought Bivens and FTCA claims
against the INS. The district court granted the defendant’s motion to dismiss and the plaintiffs appealed. The
appeals court reversed the lower court’s decision, holding that the officers knowingly placed the alien in
danger in disregard of, or with deliberate indifference to, his due process rights, which supported a valid Bivens
claim. The appeals court further noted that a limited right under the due process clause extends to detained
aliens.

In Alfrey v. United States (2002) the estate of a federal prisoner who was killed by his cell-mate brought a
claim under the FTCA and also brought a Bivens action against the correctional officials. The district court
dismissed the Bivens claim and granted summary judgment for the defendants based on the discretionary
function exception to the FTCA. The estate appealed and the appeals court held that the plaintiff failed to state
a Bivens claim and that the discretionary function exception barred an FTCA claim based on the officers’
response to the report of the cellmate’s threat. The appeals court, however, ruled that the federal officers had a
non-discretionary duty to perform a prisoner monitoring assessment of the prisoner, who was to be held at a
federal facility pending trial on a federal charge, before assigning the prisoner to share a cell with a federal
prisoner, precluding summary judgment on the FTCA claim.

Questions have surfaced regarding whether a private corporation could be successfully sued under Bivens.
Like many correctional entities, federal correctional facilities have turned to private corporations to provide
operational and medical responsibilities for confined detainees. This question was addressed in Sarro v. Cornell
Corrections, Inc. (2003). A federal pretrial detainee brought a Bivens action against the private operator of a
prison facility, officers employed by the operator, and others. A federal magistrate recommended that
summary judgment be entered for the defendants and the prisoner objected. The district court held that the
prisoner could maintain a Bivens claim against the officers employed by the private operator, but the private
corporation that operated the facility could not be sued under Bivens. The court held that officers and operators
were not subject to Bivens actions because they did act under color of law, because only federal prisoners were
housed in the facility.

In Watson v. United States (2007) a guardian brought a legal action under the FTCA, alleging that the
government responded negligently to a prisoner’s medical condition, which resulted in a brain hemorrhage
that left him permanently disabled. The district court ruled in favor of the defendant and the appellate court
affirmed. The court noted that there was sufficient evidence that the government lacked notice of the need to
closely observe the prisoner for post- surgical complications upon his return to the correctional facility after
surgery. Evidence indicated that the prisoner did not require observation upon his return to the facility. The
court upheld the lower court’s finding that the government did not breach any applicable standard of care by
failing to summon an air ambulance after the prisoner was found unconscious in his cell, where expert
physicians testified that the use of an air ambulance was dependent upon distance, necessity, and the patient’s
best interest, but did not suggest that such factors applied to the prisoner’s case.

The United States Supreme Court granted certiorari to examine whether a private person may use the FTCA
to redress allegations of malicious prosecution, extortion (under RICO), and retaliation against federal agents
attempting to obtain property for the federal government. In Wilkie v. Robbins (2007), Robbins owned a ranch
in Wyoming that intermingled with federal lands. A previous owner allowed the Bureau of Land Management
(BLM) right- of- way access across the property, but when Robbins purchased the property he refused to re-
grant such access. Robbins brought legal action, alleging that the BLM threatened and harassed him with
meritless criminal charges in violation of his constitutional rights. He brought a lawsuit under the FTCA
seeking damages and declaratory and injunctive relief against the federal agents for extortion, malicious
prosecution, and retaliation. The district court dismissed the claims, but the Tenth Circuit Court of Appeals
reversed. The government argued before the Supreme Court that BLM officials should be granted qualified
immunity and therefore could not be sued for extortion. The government also argued that an FTCA suit could
not be brought because review of the officials’ actions was available under the Administrative Procedures Act.

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The Court, in a seven- to- two decision, agreed with the federal government, holding that neither the FTCA
nor RICO provided Robbins a cause of action. The Court ruled that Congress did not design the FTCA to align
with the types of claims made by Robbins and determined that his argument did not fit into the framework of
the FTCA. The Court reasoned that “the FTCA is not a remedy available for a claim against a law enforcement
official to address malicious prosecution.” The Court was not prepared to allow the FTCA to become a remedy
within a landowner’s toolkit. According to the Court, Robbins had other administrative and judicial remedies
available, as provided in the Administrative Procedures Act, to vindicate his complaints and he failed to fully
access them. The Court also reasoned that the FTCA did not provide an intuitively meritorious measure for
recognizing a new constitutional cause of action.

In Padilla v. Yoo (2009) a detainee, a U.S. citizen designated as an “enemy combatant” and detained in a
military brig in South Carolina, brought numerous claims under Bivens against a governmental official. Padilla
alleged denial of access to counsel, denial of access to court, denial of freedom of religion, unconstitutional
conditions of confinement, cruel and unusual confinement, and other violations of his constitutional rights.
Defendants moved to dismiss the lawsuit. The court noted that the detainee, who had been detained for two
years incommunicado with no access to counsel and very tight restrictions and monitoring, stated a claim and
was hindered from bringing his claim before the court. The prisoner claimed that he suffered prolonged periods
of shackling in painful positions and prolonged periods of illumination and intentional interference with sleep
by means of loud noises at all hours, and that he was subjected to extreme psychological stress and
impermissibly denied medical care without support of legitimate penological interests. The court held that
national security issues were not a factor to deny a U.S. citizen the rights afforded through the Constitution,
and denied qualified immunity to the senior governmental official.

In Morales v. U.S. (2014) a federal prisoner brought an FTCA against correctional officials of the Bureau of
Prisons (BOP) after he was assaulted by another prisoner, claiming a breach of duty of care. The federal district
court held that the prisoner filed the claim properly; that the BOP breached its duty of care when he was
placed with the other prisoner in a recreational area when his designated status was to prohibit contact with
other prisoners, and the prisoner was awarded $105,000 in damages. The court noted that correctional officers
assigned to monitor the recreational area were not on location at the time of the attack and the prisoner was
stabbed by the other prisoner 14 times, sustaining severe wounds, nerve damage, and psychological harm.

In Garcia-Feliciano v. U.S. (2015) a detainee in handcuffs and leg restraints being escorted to court by the
U.S. Marshals Service fell down a flight of stairs in the courthouse. He filed an FTCA alleging that the marshals
were negligent in not providing him with assistance while walking down the steps while restrained. The court
examined the leg restraints and the policy directive of the U.S. marshals which outlined the procedures for the
court escort. The court ruled that the leg restraints caused the prisoner to trip and fall down the steps but that
the policy directive did not require the deputies to physically assist the prisoner down the stairs. The court
ruled that the deputies’ actions were a discretionary function, not subjective to FTCA, and dismissed the case.

In a unanimous decision in Simmons et al. v Himmelreich (2016), the United States Supreme Court further
clarified the application of the Federal Torts Claims Act. Himmelreich was serving time in a federal prison and
filed two actions claiming that he was assaulted by another prisoner and that the assault was the result of
prison officials’ negligence. The assaulting prisoner warned the correctional officers that, given the
opportunity, he would smash Himmelreich’s head in as he was a pedophile. Himmelreich filed the first suit
under the FTCA against the United States and the government moved to dismiss based on an “Exception”
available under the FTCA, which permits discretionary functions of federal correctional officials, namely
determining the housing placement of prisoners. The federal district court dismissed the case, but, before the
court could render the opinion, Himmelreich filed a second constitutional tort suit directly against individual
Bureau of Prisons (BOP) employees rather than the United States. The BOP argued that the second case be
dismissed as the FTCA’s judgment bar provision (first dismissal) foreclosed any future suit against any
individual employee, and the court granted summary judgment in favor of the prison employees. Himmelreich
appealed and the Sixth Circuit reversed.

The Court reviewed the arguments offered by Himmelreich and the BOP employees and reversed the Sixth
Circuit’s holding. The Court held that the judgment bar provision does not apply to the claims dismissed for
failing to fall within the Exceptions section of the FTCA. The Court explained that the judgment bar provision
of Chapter 17 of the FTCA does not apply to cases like Himmelreich’s first suit, which is based on the

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performance of discretionary function. Because the judgment bar provision does not apply to Himmelreich’s
first lawsuit, his second one, which was filed against individual BOP employees, will be permitted to go
forward. The Court explained that nothing about the “Exceptions” section or the judgment bar provision
provides any rationale to disregard the plain text of the statute as written by Congress. The Court’s decision
clarifies the proper scope of the FTCA judgment bar and may impact government employees’ exposure to
liability.

Defenses to Negligent Tort Actions

There are a number of defenses to tort actions. For the purposes of this chapter, only three types will be
discussed: contributory negligence, comparative negligence, and assumption of the risk. Defenses and
immunity strategies will be presented in more detail in Chapter 11.

Contributory Negligence

Contributory negligence doctrine has a lengthy history. The first case to apply this legal concept was the
English case of Butterfield v. Forrester (1809). It was later used in the United States in Smith v. Smith (1824).
The concept has been used in state and federal courts.

Contributory negligence is conduct on the part of the plaintiff that contributed, as a legal cause, to the injury
sustained by the plaintiff (Prosser & Keeton, 1984). The argument is that the plaintiff was partially at fault for
his or her injuries (Silver, 2017). It may operate as a complete or partial defense for the defendant, thereby
relieving the defendant of liability. If the defendant can show that the plaintiff’s action caused his or her own
injury, the defendant will not be liable.

The defendant must show that the unreasonable actions of the plaintiff, by a preponderance of evidence,
contributed to his or her own injuries. This may be accomplished through discovery, outside evidence, or
testimony from an expert witness (Franklin, 1993). If the defendant is successful in showing that the plaintiff
contributed to his or her own injuries, the plaintiff will be unable to recover any damages.

In Fruge v. City of New Orleans (1993) a diabetic arrestee, wearing a medical notification bracelet, foamed at
the mouth while confined for public intoxication. The court concluded that the officers were negligent in
failing to provide timely medical care to the prisoner. The court also found that the prisoner contributed to his
own injuries because he had consumed a considerable amount of alcohol, which exacerbated his condition.

Most courts have not applied contributory negligence and assumption of the risk concepts to suicides in
custody (Saunders v. County of Steuben, 1998). It appears that the duty of providing care outweighs
contributory negligence on the part of the detainee. The court in Miga v. City of Holyoke (1986) found liability
when the decedent was known to the police agency, prior to being stopped, for drunk driving from previous
stops. Despite a desire to place her in protective custody and a regulation forbidding the placement of
unconscious detainees in jail cells, the defendants made no effort to obtain background information on the
woman or to call a detoxification center. The exception to this may be cases in which a suicide in custody was
unforeseeable. In Murdock v. City of Keene (1993) the court concluded that liability will not attach unless a
jailer has actual knowledge of facts indicating that the prisoner is likely to commit suicide. The prisoner’s
intentional act will preclude a finding that the jailer’s breach of duty was the proximate cause of the prisoner’s
harm. This holding was also affirmed in Thomas v. City of Parma (1993).

Comparative Negligence

Most states have instituted the doctrine of comparative negligence (Silver, 2017). A jury must determine the
portion of the injuries sustained by a plaintiff that they think is attributable to his or her negligence and the
portion that is attributable to his or her adversary’s negligent conduct. There are four categories in which a
state’s comparative negligence law may be classified:

pure comparative negligence, in which the plaintiff’s recovery is never barred, unless his or her
negligence caused 100 percent of the injuries;

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fifty percent modified rule, which bars recovery when the plaintiff’s negligence is greater than the
defendant’s negligence;
forty- nine percent modified rule, which bars recovery unless the plaintiff’s negligence is less than the
defendant’s negligence; and
slight- gross rule, which bars recovery unless the plaintiff’s negligence was slight in comparison to the
defendant’s negligence (Minzer et al., 2002).

Comparative negligence compares the plaintiff’s and the defendant’s levels of negligence. It acknowledges
that both parties may have contributed to the injury. Even though the plain-tiff bears a percentage of the
responsibility for causing his or her own injuries, he or she can still recover damages. It does not eliminate
liability for the defendant, but rather mitigates the amount of the award. For example, an officer may be 25
percent at fault in causing harm to the plaintiff, while the plaintiff is 75 percent at fault. If the jury were to
award $1,000, the plaintiff would recover $250. The comparative negligence doctrine allows the court to
determine the degree of fault of both parties in a particular incident.

In Del Tufo v. Township of Old Bridge (1996) the estate of an arrestee who died from a cocaine overdose
while in police custody brought a wrongful death action for negligence. The arrestee had not informed officers
that he ingested cocaine prior to his arrest, when he had the ability to do so. Medical care was provided for him
when he began to show signs of seizures. The individual died an hour later in the hospital from cardiac failure
due to the cocaine. The New Jersey Supreme Court found that comparative negligence was a defense to an
action for negligent failure to summon medical care for an arrestee. The court rejected the idea that drug
abusers fall into the same category as the elderly and mentally impaired; they have a responsibility to advise
the police that they have consumed drugs. Self- inflicted harm equals self- care responsibility. Although
seemingly absurd, in McRoy v. New Orleans Police Department (1990) the court held that, even though the
arresting officer used excessive force while handcuffing an arrestee, fracturing his wrist, the arrestee resisted
the arrest. A reduction of 50 percent for comparative negligence resulted.

In Ayers v. O’Brien (2009) a sheriff making a U- turn to pursue a speeding car was struck by another
motorist’s vehicle. In a lawsuit by the sheriff against the motorist for his resulting injuries, the court ruled that
the sheriff, as a plaintiff, could not use a statute providing a legal standard of “reckless disregard” for the
liability of an emergency vehicle operator as a “shield” against a comparative negligence defense by the
motorist. The reckless disregard standard only applies when the driver of an emergency vehicle is sued or
countersued.

Assumption of the Risk

While in many jurisdictions the doctrines of contributory and comparative negligence prevail, assumption of
the risk is still used by some courts in determining degree of responsibility. Assumption of the risk applies
when a plaintiff knew or should have known of the existence of certain risks. Thus the plaintiff knowingly
engaged in certain activities and was harmed. If the defendant can prove the elements of assumption of the
risk, the plaintiff is precluded from recovering damages.

There are three elements the defendant must prove in asserting the defense of assumption of the risk. First,
the defendant must show that the plaintiff knew or should have known of the risk involved, or had actual
knowledge. Evidence such as the plaintiff’s behavior prior to the injury may support this element. Second, the
defendant must show that the plaintiff had the ability to recognize the risk associated with the activities
(behavior and knowledge). Finally, the defendant must show that the plaintiff had the opportunity to disengage
from the harmful activity, but failed. There would be no risk had there been an opportunity for the plaintiff to
remove himself from it. The general principle is that the plaintiff knowingly placed himself in a dangerous
situation and should therefore be liable for his actions. For example, a police officer responds to a silent alarm
of a robbery at a local bank. As the officer exits his vehicle the bank robber exits the bank, notices the officer,
flees on foot, and runs into the street where a truck strikes and severely injures him. The bank robber cannot
anticipate recovering damages when he knowingly chose to commit the robbery and also chose to flee from the
officer by running into a busy street. The robber assumed the risk of the activity and the officer would not be
liable.

In City of Jackson v. Perry (2003), previously discussed in the wrongful death section, the court applied the

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three elements of assumption of risk theory to the woman who eluded the officers after attempting to pass a
forged check. The court ruled that the woman shared in the liability of causing harm to the innocent victim
through her risky behavior of operating her car at speeds in excess of 80 miles per hour in a highly populated
residential area. The court further noted that the woman had knowledge that such behavior would and could
cause harm to another in the residential area and failed to disengage from such harmful activity. The judge
determined that the woman assumed the risk when she operated her vehicle in a reckless fashion and assessed
an undisclosed amount against her. The woman settled her claim with the family.

Remedies in Tort Actions

As noted in Chapter 2, a plaintiff in a civil action files a claim to recover monetary damages for an injury.
There are three primary types of monetary damages awards available to a prevailing plaintiff in tort actions:
compensatory, punitive, and nominal.

Compensatory Damages

The cardinal principle of compensatory damages in Anglo- American law is that of compensation for the
plaintiff’s injury caused by the defendant’s breach of duty (Harper & James, 1956). The plaintiff receives a
monetary award for actual damages. This can include physical injury and pain and suffering. For example, a
plaintiff prevailing in an excessive force case may assert that he sustained a fracture as a result of a blow to the
head with the butt of a shotgun. He would be awarded money for the injury. He may also claim that he has
endured mental anguish, pain and suffering, humiliation, loss of income, and incurred enormous debt in
medical bills as a result of the officer’s actions. Compensation could also be granted for these claims. The
Pennsylvania Supreme Court in Catalano v. Bujak (1994) upheld compensatory damages of $1,543,440 for
medical expenses on a claim that a police officer used excessive force in making an arrest. Catalano was
stopped for speeding and arrested for disorderly conduct. He claimed the arresting officer forced him over the
hood of his car in order to handcuff him, and in the process Catalano injured his wrists when he extended his
arms to break the fall against the hood. Catalano later underwent surgery on his wrists, lost work due to the
surgery, was no longer able to perform his job as a manager at a supermarket, experienced pain and suffering,
and his future earnings were reduced. The jury returned a verdict in favor of the plaintiff, concluding that the
officer had engaged in willful misconduct.

Also recall that in the City of Jackson pursuit case the court awarded the estate $250,000 in compensation.
The court noted that the officers’ actions were reckless, proximately causing the death, and such actions
violated the department’s pursuit policy.

In Slevin v. Board of Commissioners for County of Dona Ana (2013) a detainee brought a civil action against
the County Board of Commissioners, the detention center director, and the medical director claiming that he
received inadequate medical care. The detainee alleged that he was confined in administrative segregation for
the entire 22 months of his incarceration because of his mental illness. The detainee claimed that his
confinement conditions were inhumane, that his classification status was not reviewed, and that he was not
provided with adequate medical care (which caused his mental condition to deteriorate), all in violation of his
constitutional rights and the Americans with Disabilities Act (ADA). The jury returned a verdict in favor of the
detainee and awarded him $15.5 million in compensatory damages, which included $500,000 for each month of
confinement of the detainee plus an additional $1 million for each year since the detainee’s release from
custody. The jury also awarded $3 million in punitive damages against the detention center director and $3.5
million against the medical director of the facility.

Punitive Damages

Punitive damages are assessed primarily to punish the errant officer and to send a message to others that the
court will not tolerate such misconduct. They are awarded for particularly egregious misconduct, far outside
the scope of the officer’s authority. Punitive damages are normally awarded for reckless or intentional
misconduct on the part of the officer. Generally, the award is proportional to the severity of the wrong

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committed by the officer, although it is difficult to predict the amount of the award when there has been
blatant misconduct. Further, if punitive damages are assessed, it is the individual officer’s responsibility to pay
the plaintiff. In Smith v. Wade (1983) the Supreme Court ruled that punitive damages may be awarded against
an officer for displaying reckless and callous indifference, as well as evil motive and intent toward the rights of
the plaintiff. In this case, a prison classification officer was held liable for $5,000 in punitive damages for
recklessly assigning a prisoner to a housing unit with the knowledge that he probably would be assaulted.
Several days later the prisoner was sexually assaulted by other prisoners.

In Moore v. City of Philadelphia (1990) a robbery suspect was punched, kicked, and racially insulted by
officers who forced him to strip to the waist and placed him in a cold room in an attempt to elicit a confession.
He was awarded $581,977 in compensatory damages and $100,000 in punitive damages.

Punitive damages were awarded by the court in Siggers-El v. Barlow (2006). A prisoner filed a lawsuit
against a prison official of the Michigan Department of Corrections after the official transferred him to another
facility in retaliation for exercising his First Amendment rights. The prisoner complained about the official’s
misconduct in administering the facility. The court held that the prisoner experienced emotional distress, found
that the official’s transfer of the prisoner was sufficiently reprehensible to warrant denial of immunity, and
that such behavior was worthy of a punitive damages award. The court awarded $200,000 in punitive damages
to the prisoner and awarded $90,875 in attorney’s fees to the law students who assisted the prisoner in the
lawsuit.

In Ferguson v. City of New York (2010) the estate of a man shot in the head and killed by an officer sued the
city for wrongful death, and a jury awarded damages. An intermediate appeals court found that the trial judge
had properly set aside $3 million in damages awarded for conscious pain and suffering, because the man’s
death was almost instantaneous and there was no evidence of his consciousness for any period of time
following the shooting. The appeals court, however, upheld jury awards of $55,020 for loss of past economic
support, $261,091 for past and future loss of services, and punitive damages of $2.7 million, finding them amply
supported by the evidence. The appeals court stated that the trial judge had improperly concluded that the jury
awarded punitive damages in part on a finding that the officer had negligently handled his weapon. The
appeals court found that the jury award of punitive damages was based on a finding of excessive force and
conduct that was wanton, reckless, or malicious.

In Reeves v. Town of Cottageville (2014) an officer confronted a mentally ill man who was punching at him
and shot him. The man, who was the former mayor of the town, had complained to the police department
about the officer, who wrote traffic tickets totaling $600,000 from 2008 to 2011, which was more than any other
officer in the department. Attorneys for the estate argued at trial that the shooting was retaliatory and also
sued the city for failing in their hiring process, and that the city knowingly retained an unfit officer and failed
to supervise him. The officer testified that the shooting was in self- defense. During the trial it was shown that
the officer had been previously fired by several police departments for insubordination, dangerous use of
firearms, and other alleged policy and rule violations and unethical conduct. The jury returned a verdict in
favor of the estate and awarded $97.5 million, which included $7.5 million in compensatory damages and $90
million in punitive damages; $60 million against the town and $30 million against the officer. The court upheld
the jury award.

Nominal Damages

Nominal damages are awarded as a symbolic gesture. The court may award nominal damages as a token,
recognizing that the plaintiff prevailed in the civil action but did not sustain an actual injury. Generally,
nominal damages are quite small and frequently only $1 is awarded.

Summary

The primary thrust of this chapter has been a discussion of state tort claims and defenses. The distinction was
made between state and federal tort claims. Tort actions arising out of the conduct of federal employees are
filed as Bivens actions, although they are similar to state tort actions.

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Table 3.1 State Tort Negligence Components

Elements of Negligence Definition

Legal duty Existence of a duty
Breach of duty Commission/omission

Proximate cause Causal link
Injury Actual injury sustained

Special Duty Sufficient knowledge
Foreseeability Reasonable anticipation

Defenses
Contributory negligence Plaintiff caused his/her own injury
Comparative negligence Plaintiff and defendant share liability
Assumption of the risk Plaintiff willingly engaged in activity

Damages Monetary awards
Compensatory Actual/consequential damages

Punitive To punish blameworthy conduct
Nominal Symbolic

This chapter has highlighted the more common types of torts— intentional and negligent— with case
examples, and was designed to present general principles of tort theories. Tort law varies from state to state
and can be complex because intentional torts and negligence may be defined by statute in varying ways. As
illustrated in Table 3.1, to prevail in a state tort claim a plaintiff must prove four components: (1) a legal duty,
(2) breach of that duty, (3) proximate causation, and (4) injury. An injury sustained by the plaintiff does not
have to be a physical injury. A discussion of damages was presented with defenses to illustrate how the law is
applied in varying circumstances.

The differences between state torts and federal court claims were addressed, with case examples. Defenses to
these claims show that criminal justice personnel can defend against a state tort claim, but they must show that
their actions did not breach duty to perform a certain action in regard to the plaintiff. Criminal justice
personnel should become familiar with state tort actions as the potential to be sued in state and federal court
simultaneously is a possibility. Criminal justice personnel should also closely examine the various types of
defenses that exist as this will assist in averting a civil action.

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Bibliography

del Carmen, R.V. (1991). Civil liabilities in American policing. Englewood Cliffs, NJ: Prentice- Hall.
Franklin, C.J. (1993). The police officer’s guide to civil liability. Springfield, IL: Charles C. Thomas.
Harper, F. & James, F. (1956). Law of torts. New York, NY: Matthew Bender.
Kappeler V.E., Vaughn M.S. and del Carmen, R.V. (1991). Death in detention: Analysis of police liability for
negligent failure to prevent suicide. Journal of Criminal Justice, 19: 381–393.
Kappeler, V.E. (1997). Critical issues in police civil liability (2nd ed.). Prospect Heights, IL: Waveland Press, Inc.
Minzer, M., Nates, J., Kimball, C., Axelrod, D. & Goldstein, R. (2002). Negligence. New York, NY: Matthew
Bender & Co.
Plitt, E.A. (1997). Police civil liability and the defense of citizen misconduct complaints manual. Chicago, IL:
Americans for Effective Law Enforcement.
Prosser, W.L. & Keeton, R.E. (1984). Tort law (5th ed.). St. Paul, MN: West Publishing Co.
Silver, I. (2017). Police civil liability. New York, NY: Matthew Bender & Co.
Vaughn, M.S. & del Carmen, R.V. (1991). Death in detention: an analysis of police liability for negligent failure
to prevent suicide. Journal of Criminal Justice, 19, 381–393.

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4
Civil Liability and Federal Law: Section 1983 Litigation

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Overview

Federal civil lawsuits arising out of allegations of deprivations of constitutional rights by local officials are filed
in accordance with § 1983. It provides remedies for violations of federal rights. Section 1983 lawsuits may
include claims of abuse of authority by police and correctional personnel with arrestees and prisoners, issues of
school desegregation, and other institutional reform litigation. For 40 years § 1983 litigation has made up the
majority of civil litigation in the United States. This chapter will provide an overview of the historical and
contemporary use of § 1983 and the methods that are used to bring a constitutional claim against criminal
justice personnel.

History of § 1983

At the conclusion of the Civil War, Congress enacted the Civil Rights Act (Title 18 U.S. Code § 242 [1866]) to
put an end to the lawless activities of the Ku Klux Klan. The Act provides federal criminal penalties for state
and local officials who violate guaranteed rights of citizens (Eisenberg & Schwab, 1987; Gressman, 1992). In
April 1871, Title 42 United States Code § 1983 was passed by Congress, and it provides a vehicle for citizens to
sue for violations of constitutional rights. Section 1983 added civil remedies to the criminal penalties that were
enacted in 1866.

Prior to the Reconstruction period there were only a handful of constitutional provisions that gave
protection against actions by state and federal governments. State courts and the common law were virtually
the only protections for citizens’ lives, liberty, and property. The conclusion of the Civil War changed this.
Between 1866 and 1870 Congress enacted three constitutional amendments: the Thirteenth Amendment
(abolishing slavery), the Fourteenth Amendment (due process and equal protection clauses), and the Fifteenth
Amendment (right to be free from discrimination in voting). In 1866 Congress enforced the Thirteenth
Amendment by passing a civil rights statute guaranteeing rights to African- American citizens. In 1867
Congress enacted a habeas corpus statute that gave those held in state facilities the right to challenge the
constitutionality of their incarceration in federal court. Section 1983 was enacted at the end of a five- year
period during which Congress was moving quickly to pass and enforce laws to protect the constitutional rights
of citizens and provide remedies for violations of those rights.

Prior to § 1983 the only option for redressing a violation of a constitutional right was through the common
law, and those actions were heard in state court. Section 1983 allowed for these cases to be heard in federal
court. From its enactment in 1871 until 1961, § 1983 lay virtually dormant— it was used in only 24 cases during
this period. It has been argued that there are three reasons for its lack of use (Collins, 1997). First, § 1983 was
rarely used because of a narrow interpretation and because the Bill of Rights did not apply to the states until
the Warren Court of the 1950s and 1960s began in earnest the process of selective incorporation of rights
through the Fourteenth Amendment’s due process clause. Second, § 1983 was not used much because it was
unclear whether actions of public officials that were not formally sanctioned by state law would amount to
state action. Third, § 1983 may have been dormant due to a narrow application by the United States Supreme
Court regarding the types of rights it was supposed to guarantee. For some time the Supreme Court held that
common law liberty and property rights were secured by state law and not the Constitution (or § 1983). For
example, a police chief in Brawner v. Irvin (1909) whipped an African- American woman primarily because of
her race. The federal trial court held that the rights that were denied did not fall under § 1983, but rather under
state law. The court also doubted seriously whether her rights had been denied under state law.

These three rationales seem to indicate the court’s reluctance to realistically implement § 1983 for many
years. There may have been other reasons for this reluctance. As a consequence, during its dormancy, citizens
were primarily relegated to redressing their civil rights disputes against local officials in state court through
state tort actions.

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Resurrection of § 1983

Section 1983 was enacted by Congress for three main reasons: (1) to redress unconstitutional laws; (2) to
provide a federal forum when there was no state court remedy on the books; and (3) to provide a federal
remedy when the state court remedy was available in theory but not in fact. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any
rights, 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 …

This law has four important elements. First, a person filing suit must be a protected person within the meaning
of the act. This means that anyone under the jurisdiction of the United States may bring suit under § 1983.
Second, the defendant must have been acting under “color of law.” This means the official must be acting
within the scope of his or her authority at the time of the constitutional deprivation. Third, “every person” is
interpreted to mean that every individual public official and governmental entity may be liable for
constitutional deprivations. Finally, a constitutionally protected right must have been violated. In order to
prevail, these elements must be established. These individual elements will be discussed in greater detail later
in this chapter.

For 90 years § 1983 lawsuits were rarely filed against government officials, because they were immune from
suit. In two famous cases, however, the United States Supreme Court began to expand its interpretation of who
could be sued under § 1983. In United States v. Classic (1941) the Court held that officials acting under color of
law, as election officials were in Louisiana when they rigged an election, could be held liable for misuse of
power possessed by virtue of state law. Interpretation of § 1983 expanded in Screws v. United States (1945),
when the Court ruled that acting under color of law also meant acting under pretense of law. In Screws, Robert
Hall, an African- American, was beaten to death by officers who had arrested him for theft. The officers were
prosecuted under § 242 (criminal violation of civil rights) and the Court stated that “acts of officers who
undertake to perform their official duties are included whether they hew to the line of their authority or
overstep it.”

The Court further expanded its interpretation of § 1983 in its landmark decision of Monroe v. Pape (1961).
Prior to this decision it was extremely difficult to hold criminal justice officials liable under § 1983 due to the
requirement of acting under “color of law.” Monroe broadened the language of this concept. Chicago police
officers broke into Monroe’s house in the early morning and rousted him and his family out of bed, made him
stand naked in the living room, and ransacked the house. He was arrested and detained at the police
department for 10 hours and later released. Monroe was never prosecuted but did file a § 1983 lawsuit based on
an illegal search and seizure and violation of his constitutional rights. The Court ruled that the officers’ actions,
which were clothed in state law, constituted acting under color of law, and that they misused their authority
and power as police officers. The Court further concluded that Monroe did not have to exhaust alternative
remedies available in state court prior to lodging his claim in federal court. In Monroe the Court dusted off the
once- dormant law and opened the door for future litigation against the police and correctional personnel. This
decision, however, did not include liability against government entities, but only against individual officers.
Thus the City of Chicago could not be sued (see Box 4.1).

Essential Elements of § 1983 Lawsuits

Monroe has become the cornerstone for police federal civil liability (Kappeler, 1997). The law itself does not
create substantive rights or jurisdiction in the federal courts (Chapman v. Houston Welfare Rights
Organization, 1979), and is therefore procedural. The plaintiff suing under § 1983 must specifically plead
federal jurisdiction under the appropriate statute (Monroe v. Pape, 1961). Likewise, under Monroe, the plaintiff
need not first bring separate actions under state and federal law. There are several essential elements in
understanding the dynamics of § 1983 lawsuits.

How Is “Person” Defined?

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In Monroe the Court defined “person” within the meaning of § 1983 as individual officers. A government
employee may be sued for money damages in his or her individual capacity for acts performed while
discharging those duties. A suit against a state employee acting in his or her official capacity imposes liability
against the entity that the employee represents and cannot be brought, because the Eleventh Amendment
prohibits lawsuits against the state (Brandon v. Holt, 1985).

Box 4.1 Monroe v. Pape (1961)

During early morning hours, 13 Chicago police officers broke into Monroe’s house and ordered him and
his six children out of bed and forced them to stand naked while they ransacked the house. Monroe was
then arrested and transported to the police station. He was held for 10 hours, not allowed to call an
attorney, and was neither arraigned nor prosecuted. He filed a § 1983 lawsuit claiming that his Fourth
Amendment protection against unreasonable search and seizure had been violated.

The United States Supreme Court granted certiorari to examine the issue of whether the Chicago police
officers and the city should be liable under § 1983 for the officers’ actions. The Court held that a plaintiff
need not exhaust available state remedies prior to filing a § 1983 claim in federal court. The Court held
that the officers’ actions were “action under color of law” within the meaning of § 1983, even if what they
did also happened to be in violation of state law. The Court concluded that the City of Chicago was not
liable, because Congress did not intend to bring municipalities within the provisions of § 1983.

Justice Douglas’s opinion was significant for several reasons. First, the decision dusted off the rarely
used § 1983 after a lengthy period of disuse. Douglas stated that “Section 1983 makes a man responsible
for the natural consequences of his actions.” Prior to this decision it was difficult to hold public officials
liable for their actions under § 1983. Second, this is a seminal case because it literally opened up the
floodgates of the courts, which have provided that citizens claiming that their constitutionally protected
rights have been violated by a public officer’s actions may now bring a civil suit against that officer.
Third, the decision interprets the language in § 1983 that states “every person acting under color of law …
may be held liable.” Every person is defined as “every officer.” When officers perform their sworn duties
by virtue of state law and misuse their authority, they may be held liable for the abuse of such power.
Liability will attach under § 1983 when an officer misuses his or her authority and violates an individual’s
constitutionally protected right.

Further, the Supreme Court ruled in Will v. Michigan Department of State Police (1989) that state officials
cannot be sued under § 1983 when they act in their official capacity. The Court emphasized that Congress did
not intend to include states or state agencies within the definition of “person” for purposes of § 1983 liability.
Plaintiffs may, however, sue a state and state agencies for prospective injunctive relief under § 1983 (Kentucky
v. Graham, 1985).

The Supreme Court further expanded the definition of “person” to include local governments and their
employees in Monell v. Department of Social Services of the City of New York (1978). Prior to Monell, local
governments were immune from § 1983 liability based on the rationale that they were not “persons” as defined
by law. The Dictionary Act (enacted in 1871 and originally codified at 16 Stat. 431) allowed the word “person”
to be applied to political bodies. Based on the history of § 1983 and relying on the Dictionary Act, the Supreme
Court concluded in Monell that municipalities, as well as other governing bodies, are “persons” within the
meaning of § 1983. The Court in Monell held that governmental bodies may be held liable when an officer acts
pursuant to a custom or official policy of the agency and it violates an individual’s constitutional rights.
Plaintiffs may now sue and recover damages against county, city, municipal, and other units of local
government for the actions of their officers. A complete discussion of supervisory liability will be presented in
Chapters 5 and 6.

How Is Acting Under “Color of Law” Defined?

For liability to attach, a person must be acting under “color of law.” This phrase normally means that an officer

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or official misused his or her official powers granted by law in the office he or she was sworn to uphold
(Monroe v. Pape, 1961). In West v. Atkins (1988) the United States Supreme Court further stated that employees
who carry out their official responsibilities act under color of state law and are state actors even when they act
in violation of state law. The courts have broadened this phrase to include actions taken under the auspices of
state and local laws, ordinances, and agency rules. Actions that exceed the law and the scope of authority
constitute acting under “color of law.” For example, assaulting a prisoner after a prison disturbance would
constitute action outside the scope of the officer’s authority.

Actions taken under color of federal laws by federal employees are excluded. Bivens actions are not
incorporated under § 1983. The off- duty actions of an officer cannot be the basis of litigation unless the officer
uses police equipment or uses his or her authority as an “official” employee.

Inquiries by the courts to determine what constitutes acting under color of law require a determination of
the “nature of the officer’s act, not simply his duty status” (Vaughn & Coomes, 1995). Using the “totality of
circumstances” analysis, courts determine whether an officer was acting under color of law by examining
whether criminal justice personnel invoke power if they discharge duties routinely associated with their work,
or if they use their authority to lure plain-tiffs into compromising positions. Further, courts hold that officers
act under color of law if they wear their uniforms, draw their firearms, identify themselves as law enforcement
or correctional officers, place suspects under arrest, detain and confine them, file official reports, and otherwise
hold themselves out as official personnel for a government agency (Vaughn & Coomes, 1995).

For example, in Ousley v. Town of Lincoln (2004) the court found that an off- duty officer was acting under
color of law when he arrested a youth for assault, disorderly conduct, and malicious damage of property.
Officer Kevin Harty of the Lincoln Police Department was off duty when he stopped his personal vehicle after
observing Ousley fighting with his girlfriend in the middle of the street. Ousley shouted “Go ahead and hit
me!” and pounded on the hood of Harty’s car with his fists. Harty, not in uniform, exited his car and an
altercation occurred between Ousley and himself. Ousley claimed that Harty chased, beat, and strangled him.
Witnesses claimed that they saw Harty chase Ousley and that they heard Harty yell he was the police and that
someone should call the police. Harty’s version was that he had a brief “encounter” with Ousley and that he
returned to his car and waited for the police. Prior to the police arriving, Harty called the Lincoln Police
Department and requested backup.

Responding police observed an obvious altercation between Harty and Ousley. Harty’s shirt was torn and he
had abrasions on his body. Ousley was covered in blood. The police filed three criminal charges against
Ousley. The judge dismissed all but the malicious damage of property charge, ruling that Harty was not a
credible witness. Ousley filed a civil lawsuit, claiming that his constitutional rights had been violated.

At trial the court ruled that, based on the “totality of circumstances” surrounding the incident, Harty acted
under color of state law. The court examined the circumstances of this incident and noted that Harty did not
wear police attire, did not use any type of police weapon, and the location of the incident, all of which pointed
in his favor. The court, however, found that Ousley presented compelling evidence that Harty not only
announced that he was a police officer, which several witnesses’ testimony verified, but also that he was acting
in his official capacity as an officer at the time of the altercation, and requested backup from the department.
The court concluded that such evidence showed that Harty was acting as a “police officer” at the time of the
incident and ruled in favor of Ousley.

With some frequency, off- duty conduct emerges as a matter for the courts to consider in determining
whether the concept of “color of law” should apply. In Errico v. Township of Howell (2008) the lower court
addressed this question. Officer Moore was engaged in a pursuit of Errico that exceeded speeds of 100 miles per
hour. During the pursuit two additional officers joined Officer Moore but Errico was able to elude them.
Officer Storrow had ended his shift and was driving his personal vehicle home when he heard over the radio
that the pursuit was nearing his vicinity. Storrow pulled into a store parking lot to assist in the possible
intercept of Errico. After several minutes Storrow learned that the officers had lost sight of Errico and decided
to proceed home. Storrow continued to listen to his police radio and learned that Errico was now on the same
road that he was traveling on, and within several seconds Errico’s vehicle collided with Storrow’s. Errico died
as a result of injuries sustained in the collision.

Errico’s estate filed a lawsuit claiming that Storrow’s action caused Errico’s death. Errico’s estate theorized
that Storrow was acting in his personal capacity at the time of the accident and not in his official capacity as a

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police officer. They further argued that when Storrow left the parking lot and headed home in his personal
vehicle he was no longer concerned with the pursuit, and thus was not acting under color of state law. Storrow
claimed that his department required him to be ready to assist on- duty officers and to be prepared to respond
to any situations that he might encounter by himself. He asserted that he was acting in his official capacity
consistent with his department’s policy. The court agreed and granted summary judgment holding that
Storrow was acting under color of law at the time of the incident.

What Is the Focus of the Complaint in a § 1983 Lawsuit?

The plaintiff must show that the conduct of the defendant resulted in the violation of a constitutional right or
federal law that can be enforced in accordance with § 1983. Section 1983 creates no rights, but is a vehicle to
redress violations of the Bill of Rights and certain federal statutes. Mere negligence is not actionable as a § 1983
claim— such claims must be brought in state court (Daniels v. Williams, 1986). Further, violations of city
ordinances or state laws are not actionable under § 1983.

Box 4.2 identifies the primary constitutional amendments that form the basis of § 1983 actions. Criminal
justice personnel must be familiar with these amendments because they regularly make decisions that involve
rights that are protected by the amendments. Violating these rights can lead to civil liability. Officers’ actions
may also lead to litigation against their agency. Therefore criminal justice officers need to know the law, their
legal responsibilities, and their department’s policy and procedure manual. They also must be aware of how
these amendments apply to the status of offenders in the criminal justice system.

Box 4.2 Selected Constitutional Amendments

First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of grievances.” If criminal justice
personnel violate First Amendment rights in their official capacity they are subject to § 1983 litigation
(Alliance to End Repression v. City of Chicago, 1982; Hutchings v. Corum, 1980).

Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” This amendment restricts the state and its officers (Wolf v.
Colorado, 1949).

Fifth Amendment: “Nor shall any person be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law. …” State and local officers must follow this
requirement (Benton v. Maryland, 1969).

Sixth Amendment (in part): “In all criminal prosecutions, the accused shall enjoy the right … to have the
assistance of Counsel for his defense.” This provision binds the states, as do other requirements in this
amendment (Gideon v. Wainwright, 1962).

Eighth Amendment: “Excessive bail shall not be required … nor cruel and unusual punishments
inflicted.” Another restriction that is binding on the states (Robinson v. California, 1962).

The Fourteenth Amendment (in part): “No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” This amendment, by its terms, applies to the states (Powers v. Lightner, 1987).

Remedies Under § 1983

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Filing a § 1983 lawsuit allows the plaintiff a range of remedies should he or she prevail. A prevailing plaintiff
may be awarded monetary damages and injunctive or declaratory relief. As ordered by a court, injunctive
relief prohibits a certain practice that a government entity may be performing which violates a constitutionally
protected right of another. Declaratory relief, in the court’s opinion, may determine that a regulation or
practice is unconstitutional without necessarily requiring any remedial action.

Another benefit of filing a lawsuit in federal court is that the process of discovery (obtaining documents
from the defendant) is more simplified than in state court. Plaintiffs filing a § 1983 lawsuit are not required to
exhaust state remedies prior to filing in federal court. Since 1976 prevailing plaintiffs’ attorneys may be
awarded attorney’s fees. These features make filing a § 1983 lawsuit attractive and more likely that plaintiffs
and their attorneys will file such lawsuits against criminal justice personnel.

Section 1983 authorizes any citizen in the United States to file a federal civil lawsuit. Corporations are
excluded. Section 1983 has also been interpreted to mean that aliens legally in the United States may also file
suit under § 1983 (Graham v. Richardson, 1975). Some courts have extended the Fourteenth Amendment due
process and equal protection clauses in § 1983 cases to apply to illegal aliens. Pretrial detainees, probationers,
convicted prisoners, and parolees may also file § 1983 lawsuits.

A plaintiff may file a § 1983 lawsuit in either state or federal court simultaneously, although a majority are
filed in federal court (Maine v. Thiboutot, 1980). Plaintiffs are subject to statutes of limitation when filing a §
1983 lawsuit. Statutes of limitation are laws that stipulate a certain period for the action to be filed in court
from the date the incident giving rise to the action occurred. In Wilson v. Garcia (1985) the Supreme Court
determined that § 1983 cases are “personal injury” cases, and that statutory periods used in state courts be used.
Generally, the statutory period is three years.

The same types of damages awarded in state tort claims are available in § 1983 litigation: nominal,
compensatory, and punitive. Damages are awarded for injuries, pain and suffering, loss of earnings, emotional
distress, medical expenses, and loss of property (Carey v. Pipus, 1978). Punitive damages may be awarded for
particularly blameworthy conduct on the part of the defendant. In Smith v. Wade (1983) the Supreme Court
held that actual malice is not necessary to recover punitive damages— reckless or callous indifference to
constitutional rights is sufficient (see Box 4.3).

As discussed in Chapter 1, Ross and Bodapoti (2006) found in a 15- year study of 150 police agencies that the
average compensatory award granted by the court in 25 categories of police civil lawsuits was slightly more
than $100,000 per case, excluding attorney fees. Generally, criminal justice personnel prevail in a majority of
civil actions, but when the plaintiff prevails compensatory awards can be significant. For example, a review of
custodial suicide litigation trends reveals that the average compensatory award granted to the estate is
approximately $200,000 (Ross, 2010). This figure is comparable to the figures reported by O’Leary (1989)—$200,
000— and the Americans for Effective Law Enforcement (AELE, 2008)—$225, 000— regarding suicide litigation
award trends.

For example, in Woodard v. Correctional Medical Services of Illinois (2004) the Seventh Circuit Appellate
Court upheld a lower court’s award of $1.75 million in the custodial suicide of a state prisoner. The award was
based on a claim of an alleged custom of failing to follow proper procedures with mentally ill prisoners.
Further, in Sisk v. Manzanares (2003) the court reduced a jury award of $10 million to $225,000 for failure to
prevent a prisoner’s suicide due to the state statutory limit on wrongful death awards.

In King v. Marci (1993) the court upheld a malicious prosecution award of $75,000 for two months in
detention and emotional distress. Punitive damages for false arrest and excessive force were also proper. The
court in Franklin v. Aycock (1986) assessed $5,000 each in punitive damages against three detention officers.
They had repeatedly kicked a prisoner who was shackled in bed.

Box 4.3 Smith v. Wade (1983)

Prisoner Wade was voluntarily placed in protective segregation in a youth correctional facility in
Missouri because he complained of physical abuse by other prisoners. Classification Officer Smith placed
Wade in a cell with another prisoner and later placed a third prisoner, who had a history of fighting, in
the same cell. Smith was aware of the third prisoner’s assaultive history, ignored it, and failed to
determine whether other cells were available. Wade later was sexually assaulted and filed a § 1983 claim

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against Smith, other officers, and correctional officials, asserting that his Eighth Amendment rights were
violated. Wade prevailed and was awarded $25,000 in compensatory damages and $5,000 in punitive
damages. The appellate court affirmed the decision and Smith appealed the punitive damages award to
the United States Supreme Court.

The Supreme Court examined the issue of whether a jury could award punitive damages against an
officer who acts with reckless disregard of or indifference to the safety of a prisoner and his or her
protected constitutional rights. The Court affirmed the decision. The Court concluded that a jury is
permitted to assess punitive damages in a civil action in which an officer’s action is motivated by
malicious intent and if the defendant acted with callous indifference to, or reckless disregard of, a
prisoner’s rights. Punitive damages may be awarded for particularly egregious and blameworthy
misconduct marked by evil intent or motive, as demonstrated by the defendant.

This case is significant because, in awarding punitive damages, the jury is sending a message that such
actions are outrageous and that it intends to punish the officer for such actions. Punitive damages may be
awarded when a defendant’s actions are motivated by malicious intent and when the defendant acted in a
callous and reckless manner, without regard for the safety or rights of the prisoner. This decision makes it
less difficult for a plaintiff to recover punitive damages.

Plaintiffs filing § 1983 lawsuits may also seek declaratory and injunctive relief. When awarding a
declaratory judgment the court may declare that a state statute or regulation is unconstitutional. Declaratory
relief in federal court is discretionary, as the court may award compensation for rights violations. For example,
a court may examine a correctional department’s use- of- force policy and declare it unconstitutional and
require the department to rewrite it in accordance with constitutional provisions. When authorizing injunctive
relief, a court goes further in providing redress to the plaintiff. The court could prohibit defendants from
engaging in certain unconstitutional conduct in the future or require that they take certain steps to avoid
further violations of the Constitution.

Compensatory and punitive damages were awarded to a prisoner who sustained injuries after a use- of-
force altercation with correction officers. In Jackson v. Austin (2003) officers instructed Jackson to stand in line
for the prison medical clinic and Jackson attempted to explain that he was there for treatment of his knee.
Jackson explained that he could not stand for long periods and needed to sit. The officer refused to examine the
prisoner’s medical restriction orders signed by a physician. He grabbed Jackson and pushed him to the floor
and handcuffed him. A second officer on the scene did not participate in the action but failed to intervene in
the actions of the first officer.

Jackson filed a §1983 lawsuit and the court rejected a motion for qualified immunity from the officers. The
court held that the prisoner did not have to prove that he sustained significant or permanent injuries and that
the officers used excessive force in restraining him. The court ruled in favor of Jackson and assessed $15,000 in
compensatory damages and $30,000 in punitive damages against both officers. The court also noted that the
prisoner was 60 years old and that the officers were aware that he had a knee injury.

Under the Federal Tort Claims Act (FTCA), monetary damages may also be awarded to a plaintiff. In Limone
v. U.S. (2009) released prisoners, after their convictions had been overturned, and representatives of prisoners
who died in prison brought a Bivens action against the U.S. government, asserting claims that governmental
agents framed them. In a bench trial the court found in favor of the plaintiffs and the government appealed the
decision. The First Circuit Court of Appeals affirmed the lower court’s decision. The circuit court held that the
FBI’s conduct of cultivating witnesses’ false testimony, which led to wrongful convictions, was extreme and
outrageous, supporting a claim of intentional infliction of emotional distress, and violated due process under
Massachusetts law and the FTCA. The court awarded $1 million per year of wrongful incarceration in the
plaintiffs’ action. Further, the court ruled that the FBI agents engaged in malicious prosecution; agents engaged
in a coercive conspiracy and intentionally inflicted emotional distress on the prisoners; supervisors were
negligent in the supervision of the agents’ activities; and loss of consortium damages were awarded to the
prisoners’ wives and children.

Injunctive relief may be granted in the form of a temporary restraining order, a preliminary injunction, or a
permanent injunction. Courts can grant a broad range of injunctions in § 1983 cases. The Supreme Court in Los
Angeles v. Lyons (1983) determined that the plaintiff could not sue for injunctive relief. The plaintiff, who had

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been a victim of a chokehold, sued, asking the Court to enjoin the future use of chokeholds by the Los Angeles
Police Department. The choke-hold had resulted in the deaths of 16 people, many of whom were African-
American males like the plaintiff. The Court ruled that the plaintiff had not shown with certainty that he
would have another encounter with the police. Even if he could make such a showing, he could not establish
that the chokehold would be applied specifically to him. In an effort to limit federal court intrusion into the
state’s operation of prisons and jails after a finding of unconstitutional conditions in a facility, the courts have
normally given officials the opportunity to develop a plan to bring conditions into compliance with the
Constitution (Lewis v. Casey, 1996).

In Chester v. Beard (2009) prisoners on death row brought a class action lawsuit under § 1983 against
Pennsylvania Department of Corrections officials, seeking an injunctive relief against claims of violations of
their right to be free from cruel and unusual punishment and their right to due process arising from
Pennsylvania’s use of the lethal injection execution method. The court rejected the defendant’s motion to
dismiss. The court held that the prisoners had standing to bring the § 1983 claim to the state’s use of the lethal
injection method, requesting a permanent injunction, even if they were not under active death warrants. The
court noted that being sentenced to death row supported the fact that the prisoners had sufficient personal
stake in the action to satisfy the standing requirements. The court agreed with the prisoners indicating that
they showed that the lethal injection method exposed them to the risk of extreme pain and suffering because
the state failed to train personnel who were assigned with conducting the execution.

Can Attorney’s Fees Be Assessed?

Section 1983 does not on its face require the awarding of attorney’s fees. Awarding of attorney’s fees is
discretionary on the part of the court. Congress modified the American rule in the Civil Rights Attorney’s Fees
Awards Act of 1976 (42 U.S.C. § 1988). The rule is a tradition at common law that each party pays his own
attorney’s fees, win or lose (Alyeska Pipeline Service Co. v. Wilderness Society, 1975). The statute provides a
financial incentive to bring lawsuits that might not otherwise attract attorneys, either because only injunctive
relief is sought or because the likelihood of substantial damages is uncertain. The Attorney’s Fees Act states in
part:

… 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 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.

In order for an attorney to recover attorney’s fees, the plaintiff must obtain at least some actual relief on the
merits of his or her claim. Plaintiffs who proceed in a § 1983 lawsuit pro se (on their own behalf) are not
entitled to attorney’s fees even when they prevail. Further, the Supreme Court has held that prevailing
plaintiffs, not prevailing defendants, sued under § 1983 should recover attorney’s fees (Hughes v. Rowe, 1980).
There does not have to be a trial in order to recover attorney’s fees. In Maher v. Gagne (1980) the Supreme
Court ruled that the plain-tiffs were entitled to attorney’s fees even though the case was settled through a
consent decree agreement. This ruling is significant for conditions- of- confinement suits that are settled under
a consent decree. This may also be of significance to law enforcement agencies that settle under consent
decrees in the future.

In determining the appropriate amount to award an attorney under § 1988, the Supreme Court in Hensley v.
Eckerhart (1983) established a figure known as the “lodestar.” This figure is computed by multiplying the
number of hours reasonably expended on the litigation by a reasonable hourly rate. This computation is
completed at the end of the litigation. The following factors are normally considered in calculating the lodestar
figure: (1) the time and labor required; (2) the novelty and difficulty of the questions presented by the case; (3)
the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney
due to acceptance of the case; (5) the customary fee for similar work; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances; (8) the amount in dispute and the results
obtained; (9) the experience, reputation, and ability of the attorney; (10) the “undesirability” of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in similar cases. In 1996,
however, Congress placed a cap on the hourly rate used under § 1988 in prisoner rights litigation. In
accordance with 42 U.S.C. § 1997e(d)(3), the hourly rate used in determining the fee by federal judicial courts

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cannot exceed $112.50.
In Knopp v. Johnson (1989) experienced attorneys sought fees up to $190 per hour. The 35- day trial in a

prison conditions case led to attorney’s fees of more than $200,000. In Spell v. McDaniel (1987), a particularly
egregious case, the court assessed $900,000 for compensatory and punitive damages and $325,000 in attorney’s
fees. A police officer kicked a restrained and compliant arrestee in the groin. The injury required surgical
removal of a testicle, which resulted in sterility.

Prisoners prevailed in a § 1983 lawsuit and were awarded $12 million when they contested an
unconstitutional policy and practice of performing suspicionless strip searches in Bynum v. District of
Columbia (2006). The court ruled that the prisoners, who were confined from 2002 to 2005 and were strip-
searched illegally, had been deprived of their due process rights, resulting in a large damages award. Several
prisoners shared in the award. The court conducted a hearing to determine whether the award was reasonable
and affirmed the award. The court also awarded attorney’s fees in the amount of $4 million, or 33 percent of
the award, and noted that such an amount was reasonable based on the complexity of the legal issues
contained in the case.

In Fox v. Vice (2011) the United States Supreme Court reviewed a case questioning the issue of awarding
attorney’s fees to a plaintiff even if the claims were frivolous. Fox filed a § 1983 claim alleging that the former
chief of police, Vice, used dirty tricks to force him out of the race in the election for police chief. Fox also filed a
claim under state law for defamation and sought damages. Vice moved for summary judgment as Fox admitted
the claims were not valid. The federal court dismissed the § 1983 claims with prejudice and moved the case to
state court on the remaining claims and noted that Vice’s attorney’s work could be useful in the state court
proceedings. Vice requested to be awarded with attorney’s fees from the federal court for his time and work on
the case in accordance with § 1988. Vice argued that Fox’s federal claims were baseless and submitted attorney
billing records estimating the time he spent on working on the case but did not distinguish between the federal
and the state law claims.

The federal district court granted Vice’s motion for attorney fees finding Fox’s claims were frivolous. The
court did not require the attorney to distinguish between the work performed and the fees for the federal case
and the state law case. The Fifth Circuit affirmed the lower court’s decision because Fox’s lawsuit contained
frivolous claims. The United States Supreme Court examined the case and affirmed the Fifth Circuit’s ruling.
The Court explained that attorney’s fees were primarily awarded to a successful plaintiff and only to a
defendant’s attorney when the plaintiff’s claims were found to be frivolous. The Court noted that the Sixth
Circuit had previously awarded attorney’s fees to a defendant when the plaintiff’s allegations were considered
frivolous. In granting the award, the Court established the “but for” test: holding that § 1988 permits the
defendant’s attorney shall be awarded only the portion of the fees that would not have been paid “but for the
frivolous claim.” Thus the Court established that if a frivolous claim causes a defendant’s attorney to incur
attorney’s fees, a court may award the attorney those fees. However, if the defendant would have incurred the
fees anyway in defending the frivolous claims, a court may not transfer the costs to the plaintiff. While this
decision is favorable to a defendant’s attorney, it should signal to a plaintiff’s attorneys that they may be
accountable to incur the costs for the defendant’s attorney if they bring frivolous claims to court.

In Drumgold v. Callahan (2011) the question of whether attorney’s fees were excessive was asked in a case
where withholding exculpatory evidence resulted in conviction of an innocent man. In 1988 Shawn Drumgold
was arrested and charged with murdering a 12- year- old girl who was killed during a gang- related shooting.
Detective Callahan investigated the murder and learned that a homeless man, Roy Evans, had information
about the murder. Evans was also a witness of a crime against his cousin. Callahan moved Evans and his
family into a hotel for eight months and paid him cash for his testimony. One of the assistant prosecuting
attorneys was aware of the accommodations but the prosecuting attorney who litigated the case was unaware.
During the trial Evans testified that he saw Drumgold in the area at the time of the murder and was asked by
Drumgold’s attorney if he had received anything in return for his testimony. Evans replied “no.” Drumgold
was convicted of first degree murder and sentenced to life in prison without parole.

In 2003 Drumgold moved for a new trial based on evidence that exculpatory information had been withheld
during his trial. The court granted the new trial and Evans, along with several other witnesses, recanted their
previous testimony. The prosecutor, however, declined to retry the case and Drumgold was released in 2004.
Drumgold filed a § 1983 lawsuit against the parties, claiming he did not receive a fair trial. A jury agreed and

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recommended that he be paid $14 million in damages for the intentional or reckless withholding of material
exculpatory evidence that directly caused Drumgold to be convicted. Drumgold also moved for attorney’s fees
in the amount of $2,305,585 and costs of $100,399. Callahan opposed the motion on the basis that it was
untimely, the amount was excessive, the time records lacked the required degree of specificity and detail, and
the records reflected hours spent on unsuccessful claims.

Using the lodestar method the court agreed that the attorney’s fees and costs were reasonable and were
consistent with rates charged by other attorneys with comparable experience and competence, although the
court did reduce the attorney’s fees to $1,613,846.50 and costs to $51,631. The court noted that the litigation was
“extraordinarily difficult,” which further justified the rate. The court further stated that $14 million is the
largest jury award for wrongful conviction in the history of Massachusetts and any further reduction,
considering the nature of the victory, would be unfair to the attorneys whose skill and effort resulted in such
an award. Further, the court ruled that the FBI agents engaged in malicious prosecution; agents engaged in a
coercive conspiracy and intentionally inflicted emotional distress on the prisoners; supervisors were negligent
in the supervision of the agents’ activities; and loss of consortium damages were awarded to the prisoners’
wives and children.

In Rodriguez v. County of Los Angeles (2014) the court awarded a lodestar multiplier of 2.0 to prevailing
detainees. State detainees brought a civil action against numerous defendants— including the county sheriff,
jail officers, jail supervisors, and the county— alleging excessive force under § 1983. The court found that the
evidence provided by the detainees was credible and showed that jail supervisors, including the sheriff,
tolerated and condoned jail officers threatening, using coercion, and maliciously beating and abusing
detainees. The court found that jail supervisors directed jail tactical teams to use stun grenades, riot- control
rounds, and the use of Tasers to sensitive portions of the body and on unconscious detainees, to forcibly extract
detainees from their cells. The court found the force used was grossly and maliciously disproportionate to the
need as the detainees were not resisting after being restrained. In some cases the force used by the officers
resulted in permanent injuries to some detainees. The court found that such abuse of authority and the misuse
of force, without legitimate purpose, supported holding the officers, supervisors, and the sheriff liable. As such,
the court upheld the jury’s award of $740,000 in compensation damages and $210,000 in punitive damages. The
court also ruled that the detainees were entitled to a lodestar multiplier of 2.0 and upheld payment of
attorney’s fees amounting to $5.3 million.

In Kelly v. Wengler (2014) state prisoners filed a class action lawsuit against the warden on numerous claims
of a failure to protect due to the level of violence within the institution violating their constitutional rights. The
prisoners settled the case and filed for attorney’s fees and costs. After considering the nature of the claims, the
totality of the record, and the attorney’s arguments, the court granted $349,018.52 in attorney’s fees and cost to
the plaintiff’s counsel.

Who Pays for the Damages?

Criminal justice personnel in a civil lawsuit usually have legal representation provided by their employing
agency. Law or written policy in most state agencies provides for representation through the state attorney
general’s office. As long as the officer acted within the scope of his or her authority and was held liable, the
state will pay part or all of the award.

Lawsuits against local law enforcement officers and county sheriff departments are handled differently. The
city or county attorney’s office usually will defend a civil lawsuit filed against an officer or government
agency. In many jurisdictions, local departments participate in a risk management pool and retain legal counsel
through it. Still other departments retain their own attorneys to defend department personnel. Most agencies
will provide an attorney for the officer, but it is a decision made by local administrators on a case- by- case
basis. This may be addressed in the department’s policy manual, and officers should be aware of the policy in
their department. If the agency decides not to provide an attorney, it will be necessary for the officer to retain
his or her own attorney.

Should an officer lose a civil lawsuit, generally his or her employing agency will pay the damages award.
Many states provide indemnification for state employees, although the amount varies. Most agencies will not
indemnify blatant or outrageous actions outside the officer’s authority. If the court awards more than the
indemnification, the officer pays the difference. Indemnification also varies in local agencies. If punitive

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damages are awarded, the individual officer must pay them. Payment by the agency would be contrary to
public policy. Criminal justice personnel should be aware of how their agency provides legal representation in
the event of a civil lawsuit and how damages awards are paid should the officer be held liable.

In Cabral v. U.S. Dept. of Justice (2009) the nurse of the jail brought a § 1983 action against the sheriff for
retaliation, barring her from entering the facility to do her job, and her right to freedom of speech when she
informed the FBI of alleged prisoner abuse within the jail. The sheriff filed a motion for summary judgment,
the court rejected it, and a jury found in favor of the nurse. Further, the First Circuit Court of Appeals affirmed
the lower court’s decision. The court held that there was sufficient evidence to support the jury finding in favor
of the nurse and evidence supporting her claim. The court found that the sheriff barred the nurse from the
facility with a conscious indifference to her free speech rights, as was necessary to support an award of
punitive damages to the nurse in the amount of $250,000. The court noted that the award was not excessive,
where the sheriff’s conduct was reprehensible and the award could have been more.

Mechanics of a § 1983 Lawsuit

Figure 4.1 Mechanics of a Civil Lawsuit

Figure 4.1 illustrates the mechanical framework of a § 1983 lawsuit. With some exceptions, this basic process is
followed. All § 1983 lawsuits originate with an incident (i.e., arrest, search, pursuit, use of force) in which a
criminal justice officer acts under color of law in the performance of his or her duties. Depending on the
situation, the act may or may not be within the scope of the officer’s duties. The plaintiff may allege that the

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officer violated his or her constitutional rights as a result of the incident. In the case of jails and prisons, a
prisoner may file a § 1983 lawsuit alleging that a rule or regulation has violated his or her constitutional rights,
in addition to filing a complaint about an incident in which an officer violated his or her protected rights. As
previously discussed, the plaintiff must file the suit within the statute of limitations. The plaintiff may file the
lawsuit with legal counsel or may act as his or her own attorney (pro se).

The plaintiff will usually name individual officers who were involved in the incident, and also those in the
chain of command— supervisors, administrators, and government entities. This is known as the “deep pockets”
theory (del Carmen, 1991). This theory encourages the plaintiff to name multiple defendants in the lawsuit in
an effort to find culpability with as many as possible— the idea being the more defendants named within the
hierarchy of the agency the more likely the award will be higher should the plaintiff prevail. Officers may have
only limited resources with which to pay, but the city or the county might be better able to pay the award.

The plaintiff files a complaint with the court, outlining and describing the nature of the constitutional rights
that allegedly were violated. All involved parties are named, and the complaint describes each defendant’s
liability. Each defendant receives a copy of the complaint. The attorney for each defendant also receives a copy
of the complaint. Counsel meets with the defendants to discuss the alleged incident. Pertinent documents, such
as the officer’s incident report, policies and regulations, as well as any evidence, are reviewed. Defense counsel
normally files a written response to the court denying the allegations or claiming immunity from the lawsuit.

Shortly after receiving the complaint the defense counsel may file a motion to dismiss the case. A motion to
dismiss asks the court to throw out the plaintiff’s lawsuit because it is without merit, is not founded in law, or
fails to state a valid legal claim. The judge may agree and dismiss the case, or may allow the plaintiff to amend
the complaint.

If the plaintiff’s case survives the motion to dismiss, the discovery period begins. Discovery is a process by
which one party gains information held by another party (Franklin, 1993). It is a period established by the court
to allow the plaintiff and the defendant to explore one another’s cases. Discovery provides for full disclosure
prior to trial. It also allows the parties to examine evidence that may be useful in their case that may not be
obtained through other means or sources. All jurisdictions provide for discovery. There are five basic tools
allowed in discovery:

Interrogatories
Requests for production
Requests for admission
Depositions
Examination of physical evidence

Interrogatories are written questions intended to solicit written or verbal responses. Interrogatories are
commonly used and inexpensive. Under the Federal Rules of Civil Procedure, the number of questions is
limited to 30. Named parties in the lawsuit sit down with their counsel and, under oath, answer each question.
Second, documents known as requests for production are filed. This tool gives the requesting party the
opportunity to obtain and examine physical evidence in the possession of the responding party. Documents
may include departmental policies and procedures, incident reports, photos, audio and video recordings,
drawings, personnel files, investigative reports, autopsy reports, and medical reports.

A third type of discovery tool is a request for admission. This document is a statement of fact under law
asking the responding party to admit or deny the statement. If the issue in question is admitted to be true, it
will be settled prior to trial. If the issue is contested, it must be determined at trial. Both parties may use
requests for admission. This can be helpful in settling issues prior to trial.

The fourth type of discovery tool is a deposition, which is out- of- court testimony given under oath and
transcribed. This can be the most costly form of discovery. Both parties may take depositions of the other’s
clients. Although it is an informal questioning process in which the deponent answers verbally, rules of
evidence still apply and the responses are transcribed by a court reporter. Video and telephone depositions may
be performed and used in conjunction with the transcribed document at trial. Deposition responses may be
researched as to their accuracy and read to the jury at trial. Although used infrequently, the defendant may be
asked to submit a written affidavit describing his or her actions in the incident. This, too, is taken under oath.

Finally, defense counsel will have the opportunity to examine the physical or mental injuries claimed by the

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plaintiff. This examination will be performed by a physician.
The discovery period is set by the court and may be extended at the court’s discretion. Discovery may last as

long as several months or years, depending on the complexity and magnitude of the lawsuit. At the conclusion
of discovery, defense counsel may file a motion for summary judgment, asking the court to decide the case
based on all evidence obtained through discovery. The court has several options: it can deny the motion; accept
portions of the motion, requiring it to move to trial on those portions; or grant the motion. If the case involves
both § 1983 claims and state tort actions, the federal court may dismiss the constitutional claims and remand
the case to state court to deal with the remaining state issues.

If the defense counsel filed the motion for summary judgment, the plaintiff has the right to respond. The
idea that each side is entitled to its “day in court” makes many courts reluctant to grant summary judgment.
The court may hold that the issue is a matter for the jury to decide, and the case will move to trial. If the court
grants summary judgment, the losing party has a right to appeal.

Due to burgeoning court dockets across the country, many parties now attempt to find alternatives to going
to trial. The predominant alternative methods are known as mediation and arbitration. Mediation is the more
common of the two and involves the parties in dispute and a disinterested third person coming together in
order to settle the case. The mediator does not have the authority to order the parties to settle the case. The
mediator facilitates discussion and keeps the talks going in an attempt to work toward a resolution.

Arbitration, however, takes a more powerful judicial role in the dispute. The arbitrator listens to all the
arguments from each side, weighs the evidence, and, based on the evidence, makes a recommendation. With
mediation and arbitration both parties must agree to the alternative method in reaching the resolution.

If the case goes to trial, jury selection begins. The judge and attorneys interview prospective jurors from a
jury pool to determine who is qualified to serve as a juror. Individuals who cannot participate in an impartial
manner are excused from duty. Once the jury is empaneled the trial begins. The trial starts with opening
statements, which provide an overview of the facts from the plaintiff and the defendant. Because the plaintiff
has the burden of proof, his or her case is presented first. Once the plaintiff presents his or her witnesses and
evidence, the defense presents his or her case. When both parties are finished presenting their evidence and
witnesses, they make closing arguments to the jury. Both parties attempt to persuade the jury to find in favor
of their client.

After closing arguments the judge will instruct the jury about the law and their deliberations. The jury will
take a period of time to deliberate the outcome of the case. The standard of proof used in civil cases is a
preponderance of the evidence. The losing party may appeal the verdict. Should the jury find in favor of the
plaintiff, the judge could issue a directed verdict in favor of the defendant officers. The plaintiff may still
appeal such a verdict. If the plaintiff prevails, he or she would recover damages as discussed earlier and may be
awarded attorney’s fees.

This brief description of the mechanics of a § 1983 lawsuit is provided in order to illustrate the normal path
of a civil case. Depending on the complexity and legal issues of the case, it can take years to complete. It will
take even longer if the verdict is appealed. Many of the original complaints and allegations may never make it
to court, due to rulings by the court and motions made by both parties. Prolonging the case with extensions
and motions is sometimes a strategy in an effort for evidence to be lost, memories to fade, and witnesses to
retire or die. Civil litigation is costly and can be highly stressful for those involved.

Summary

Section 1983 lawsuits are the most common type of litigation filed against criminal justice personnel. Students
and practitioners alike should be aware of their potential liability under its provisions. Since the early 1960s the
courts have been inundated with civil rights cases. Section 1983 cannot be used by citizens or prisoners seeking
to hold federal officials liable. It allows citizens, pretrial detainees, prisoners, and legal or illegal aliens to seek
redress in federal court for alleged constitutional rights violations by officers acting under color of law.
Commonly, acting “under color of law” is interpreted as meaning that the officer acted outside the scope of his
or her sworn authority. Such actions taken by an officer may be while on duty or off duty, depending on the
“totality of circumstances.” Criminal justice personnel are encouraged to review their agencies’ policies
regarding conduct while off duty.

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The mechanics of a § 1983 case and the process for working its way through the court system were provided.
Discovery has significant importance to the criminal justice officer being named in a lawsuit. Discovery allows
counsel of the plaintiff and the defendant to obtain information relevant to the litigation. Criminal justice
practitioners should be prepared to respond to a variety of legal requests that indicate their knowledge or
participation in the case. Defendants should also be prepared for a potentially lengthy process that can be
disruptive to personal and job- related activities. Officers and supervisors named in a lawsuit are encouraged to
meet with their legal counsel early in the proceedings. Moreover, defendants should be prepared to answer
numerous questions at depositions or at trial by meeting with their attorney in advance of these proceedings.

During discovery the officer may have to complete interrogatories, give a deposition, and perhaps complete
a written affidavit. Section 1983 lawsuits may be filed simultaneously in state and federal courts. Plaintiffs
using § 1983 seek to hold state and local criminal justice personnel liable for causing a violation of
constitutional rights and may be awarded compensatory and punitive damages, as well as attorney’s fees.
However, the fact that a § 1983 lawsuit has been filed does not necessarily mean that an officer’s conduct was
improper.

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Bibliography

Americans for Effective Law Enforcement (2008). Prisoner suicide (1973–2007). AELE Law Library of Case
Summaries, www.aele.com.
Collins, M.G. (1997). Section 1983 litigation. Egan, MN: West Publishing.
del Carmen, R.V. (1991). Civil liabilities in American policing: a text for law enforcement personnel. Englewood
Cliffs, NJ: Prentice-Hall.
Eisenberg, T. & Schwab, S. (1987). The reality of constitutional tort liability. Cornell Law Review, 72, 641–695.
Franklin, C.J. (1993). The police officer’s guide to civil liability. Springfield, IL: Charles C. Thomas.
Gressman, E. (1992). The unhappy history of civil rights legislation. Michigan Law Review, 50, 1323–1358.
Kappeler, V.E. (1997). Critical issues in police civil liability (2nd ed.). Prospect Heights, IL: Waveland Press, Inc.
O’Leary, W.D. (1989). Custodial suicide: evolving liability considerations. Psychiatric Quarterly, 60, 36–71.
Ross, D.L. (2008). Examining the liability trends of custodial suicides in jails, lockups, and prisons. Paper
presented at the annual meeting of the Academy of Criminal Justice Sciences, Cincinnati, OH.
Ross, D.L. (2010, March/April). The liability trends of custodial suicides. American Jails, 37–47.
Vaughn, M.S. & Coomes, L.F. (1995). Police civil liability under Section 1983: when do police officers act under
color of law? Journal of Criminal Justice, 23, 395–415.

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5
Defenses to Civil Litigation and Risk Management

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Overview

The procedures for filing civil litigation against criminal justice personnel have been discussed. Plaintiffs may
file civil actions either in state court under state tort law and in federal court under § 1983. In this chapter the
legal concepts of immunities and defenses will be presented. The chapter will conclude with a discussion of
reducing liability exposure by examining basic principles of risk management and a few examples of best
practices. It is critical that criminal justice personnel understand the defenses available, as well as their
implications. Defenses in both state and federal court will be addressed, including official immunities and the
good- faith defense.

Official Immunity

A state cannot be a defendant under § 1983. States are not “persons” within the meaning of § 1983. The
doctrine of sovereign immunity associated with the Eleventh Amendment prohibits private individuals from
filing a lawsuit in federal court against a state without its consent. States, therefore, cannot be sued in federal
or state court under § 1983. This, however, does not mean that an individual cannot sue an appropriate state
official in order to compel the official’s compliance with constitutional requirements. Moreover, sovereign
immunity and statutory prohibitions on suing states apply only to the state itself and not to state agencies.
Local governments, such as cities, counties, and other political subdivisions, do not possess sovereign
immunity. State officers are not protected by sovereign immunity when performing duties in their official
capacity.

Sovereign Immunity

The origin of the doctrine of sovereign immunity is debatable. The doctrine has roots in both Roman and
English common law and is based on the concept that the “king can do no wrong.” The doctrine has shielded
the government from being sued by a citizen. It was considered inappropriate for a citizen to file a lawsuit
against the one who created and performed duties within the government. The legal effect of this doctrine is to
prohibit a citizen from filing a lawsuit against the state or one of its subdivisions for an injury sustained by
that person that was caused by the state, unless the state consents to the suit (Robinson, 1992). If consent is
granted, it would normally take the form of a statute, defining the type of claim that may be filed. In order to
avoid citizens filing lawsuits against the states, Congress passed the Eleventh Amendment to the Constitution.
Ratified in 1795, it states:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another state, or citizens or subjects of any foreign state.

The effect of this amendment was to eliminate the use of federal courts as an entity through which
individuals could file claims against the states. Moreover, in United States v. Clarke (1834) the Supreme Court
held that sovereign immunity also applied to the federal government. The concern was about the prospect of
hindering public service and safety should the state be sued by citizens.

The United States Supreme Court ruled in Hans v. Louisiana (1890) that, in accordance with the Eleventh
Amendment and Article III of the Constitution, sovereign immunity of the states barred lawsuits from being
brought by individuals against the states in federal court without their consent. Hans attempted to sue the state
of Louisiana for not making good on interest payments on state- issued bonds. The Supreme Court held that
sovereign immunity prohibited such lawsuits in the federal courts.

The Court, however, did not conclude that constitutional provisions were unenforceable against states and
their officials. In Ex parte Young (1908) the Court emphasized that state officials threatening the enforcement
or implementation of unconstitutional statutes and actions could be enjoined in federal court without running
contrary to the Eleventh Amendment. In Young, the attorney general of Minnesota was sued in his official

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capacity for allegedly enforcing unconstitutional statutes involving railroad rate schedules. The Court stated
that Young was an individual threatening to engage in tort- like behavior who could be enjoined without
regard to sovereign immunity. The Court found that although it was improper to sue a state’s attorney general
for monetary damages, it was proper to enjoin his actions because he was acting unconstitutionally. The Court
reasoned that the actions of the attorney general were carried out in his official capacity, and such an illegal
act could be enjoined.

Types of Immunities

Because citizens are barred from suing the government due to sovereign immunity, the only legal recourse for
individuals is to sue the government official responsible for their injury. Government actions are carried out by
government employees, and the courts, recognizing this, have established some protections, as long as
employees are acting within the scope of their authority. At issue are what types of immunities or defenses are
available to criminal justice personnel and what degree of immunity they possess.

State Tort Law Immunity

State tort law immunity originates in common law principles. Officers are protected from liability if sued
under state tort law. Today only a small number of states maintain sovereign immunity under state tort law.
Because of the Eleventh Amendment immunity provision, a state cannot be sued under § 1983. Most states
have waived state tort immunity. A state official can be sued, however, and he or she can be held liable for his
or her actions in office.

Absolute Immunity

Immunity doctrine originates from late- nineteenth-century common law. Immunity in civil rights litigation is
a defense in damages actions, but not in suits seeking equitable relief. In reality, absolute immunity means no
liability at all. A lawsuit would be dismissed by the court.

The United States Supreme Court in Cleavinger v. Saxner (1985) reiterated that absolute immunity flows not
from rank or title or “location within the government,” but from the nature of the responsibilities of the
individual official. The Court denied absolute immunity to a prison disciplinary board that had punished a
prisoner for violating prison rules, because they lacked attributes of the judiciary (see Box 5.1).

Box 5.1 Cleavinger v. Saxner (1985)

Prisoners from a Federal Bureau of Prisons facility filed a Bivens action against three members of a
disciplinary committee who had found them guilty of violating prison regulations. The prisoners claimed
that their rights under the Fifth Amendment were violated, and they were awarded $4,500 each in
compensatory damages. An appellate court affirmed, and the United States Supreme Court granted
certiorari to examine whether the members of the disciplinary committee were entitled to absolute or
qualified immunity.

The Court held that the disciplinary committee members possessed qualified immunity. The Court
identified the positions that are granted absolute immunity: judges, the president, parole board, and
prosecutors. It reasoned that past case decisions have demonstrated that immunity analysis rests on
functional categories, not on the status of the defendant. Absolute immunity flows not from rank or title
or “location within the government,” but from the “nature of the responsibilities of the individual
official.” The Court further held that they did not perceive the committee’s function to be a “classic”
adjudicatory function.

This case is significant because the Court identifies the criteria that distinguish absolute and qualified
immunity. The Court ruled that members of the committee were not professional hearing officers, nor
independent like a judge or administrative judge, as they worked for the warden. Thus they were entitled

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to only qualified immunity. This decision applies to all public officers and officials, such as police officers,
correctional officers, probation and parole officers, juvenile officers, and supervisory and administrative
personnel.

In theory, absolute immunity examines the degree of discretion that the official has in policymaking and
implementing action. The higher the level of the official, the higher the degree of immunity (Bradley v. Fisher,
1872). Thus absolute immunity is available to judges, legislators, prosecutors, and members of the parole board.
Absolute immunity has been reserved primarily for those involved in the judicial process. In Pierson v. Ray
(1967) the Supreme Court held that absolute immunity shielded a municipal judge who was sued under § 1983
by clergymen who asserted that he had convicted them unconstitutionally for a peaceful protest against racial
segregation. The Court emphasized that such immunity was critical to protect the integrity of the judicial
process. The Court also held that absolute immunity did not apply to the arresting police officers.

There are three reasons American courts have supported absolute immunity for judicial, legislative, and
executive duties: (1) public officials have a duty to the public to make complex decisions about matters
pertaining to society, and mistakes are inevitable and it would be unfair to hold them liable; (2) the threat of
liability poses a two- pronged consequence— it would discourage decision- making and discourage individuals
from seeking public office; and (3) defending against lawsuits by public officials would severely deplete their
time, energy, and money, rather than allowing them to perform their official duties (Harlow v. Fitzgerald,
1982). The courts, therefore, have continued their support for immunity, not from a legal or historical
philosophy but more from a practical standpoint in operating the government.

Absolute immunity, however, is only a defense to damages actions and not claims for equitable relief (Silver,
2017). Even judges may be successfully sued for injunctive or declaratory relief, and attorney’s fees will be
available to prevailing plaintiffs (Supreme Court of Virginia v. Consumers Union of the United States, 1980).
The Supreme Court, however, ruled in Forrester v. White (1998) that, under the functional approach, a judge’s
employment decisions are administrative acts that are not protected by absolute judicial immunity.

Generally, law enforcement officers do not possess absolute immunity. At times, police officers may be
protected by absolute immunity when they are carrying out court orders, because they are performing an
essential judicial function (Apostol v. Landau, 1992). In this case officers who were merely present during the
service of a court order, which was valid, were immune, even on a claim of illegal execution. Police officers in
Jacobs v. Dujmovic (1990), who executed a valid writ based on a landlord’s lien, were absolutely immune,
regardless of whether the writ was obtained correctly. In Conner v. Alston (1988) absolute immunity attached
to a parole officer’s adjudicative duties involving the parole revocation of a parolee arrested and charged with
robbery.

Courts have granted absolute immunity on one occasion to police officers (and perhaps correctional
personnel). In Brisco v. Lahue (1983) the Supreme Court determined that police officers could not be sued under
§ 1983 for giving perjured testimony against a defendant in a state criminal trial. Under common law, trial
participants, such as judges, prosecutors, and witnesses, were granted absolute immunity for actions related to
the trial. Police officers therefore possess absolute immunity when testifying, even though it may constitute
perjury. A word of caution is needed here. Should the officer’s testimony be false, the prosecutor may
criminally charge and prosecute that officer for perjury.

Qualified Immunity

Criminal justice personnel in general are granted a different form of immunity, known as qualified immunity.
Under this doctrine, governmental officials cannot be held individually liable for federal civil rights violations
unless their conduct violated a “clearly established right of which a reasonable person would have known”
(Stone & Berger, 2009). Qualified immunity is based on the performance of discretionary acts. Discretionary
acts are activities that require deliberation or judgment; this includes numerous tasks, but the courts determine
the functions in which officers possess immunity. Discretionary actions, for example, may include the decision
to arrest a drunk driver or cite a speeding motorist. In most situations, discretionary actions are applied to an
agency administrator who is responsible for policy decisions and implementation.

Criminal justice personnel are not immune from acts that involve ministerial duties. These duties amount to

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job functions in which the officer has no discretion. For example, in many jurisdictions an officer who
responds to a domestic violence disturbance and observes evidence of assault does not have the discretion to
deliberate about whether an arrest is mandatory. In these types of cases, and in most jurisdictions, the officer
must make an arrest.

There are two reasons for granting qualified immunity. First, without such immunity there would be a
disincentive for officers to act in areas of constitutional uncertainty, even though their acts may later be judged
constitutionally permissible. Fear of boldly crossing an ambiguous legal line would hinder officers in
aggressively enforcing the law. Granting qualified immunity encourages reasonable officers to enforce the law
vigorously within constitutional boundaries. Of course, acting outside the boundaries of the Constitution de-
immunizes the officer.

Second, immunity for criminal justice personnel is provided to avoid trial and even discovery in some cases.
This is premised on the philosophy that immunity issues should be resolved prior to trial. The problem that
frequently emerges, however, is whether an officer’s actions were reasonable under the circumstances or if
they violated the plaintiff’s constitutional rights. For example, whether a search is reasonable or unreasonable
under the circumstances, and a reasonable officer would know that it is unreasonable, may influence the court
to allow a jury to determine the issue at trial.

In Scheuer v. Rhodes (1974) the issue of immunity for a state governor and, ultimately, high-level executives
emerged. The issue arose from Ohio’s governor dispatching the Ohio National Guard onto the campus of Kent
State University during student protests and disturbances regarding the United States’ role in the Vietnam
conflict. Soldiers opened fire and killed four unarmed students. The estates of the deceased students filed a
lawsuit against the governor and he claimed absolute immunity from the lawsuit. The Supreme Court had
previously opined that the Young decision allowed the state to invoke its sovereign immunity protection. But
in Scheuer the Court concluded that neither sovereign immunity nor absolute immunity applied and that the
governor and high- level executives could claim only qualified immunity. The Court reasoned that qualified
immunity would apply according to the scope of the discretion exercised, the responsibility of the office, and
the circumstances as they reasonably appeared at the time of the action in question.

A government official performing discretionary functions is entitled to qualified immunity in his or her
individual capacity if his or her conduct does not violate constitutional standards in light of clearly established
law at the time of the alleged violation. Qualified immunity is a government official’s entitlement to not stand
trial or face the other burdens of litigation as long as his or her conduct conforms to the law at the time.
Implicit in the doctrine of qualified immunity is the recognition that police and correctional officers, acting
reasonably, may err (Scheuer v. Rhodes, 1974).

After Scheuer, the United States Supreme Court concluded in Procunier v. Navarette (1978) that state prison
officials who were sued under § 1983 for alleged unconstitutional interference with a prisoner’s mail could
assert the qualified immunity defense. Prison officials may prevail on such a defense unless they violate
“clearly established statutory or constitutional rights of which a reasonable person would have known.”

The precedent- setting case that gives qualified immunity to criminal justice personnel is Harlow v.
Fitzgerald (1982). The Supreme Court determined that the sole inquiry into whether an officer would be
entitled to qualified immunity is whether the officer knew or should have known that he or she was violating
the constitutional rights of the plaintiff (see Box 5.2).

Determining the reasonableness of an officer’s actions can be problematic. This issue was answered in
Anderson v. Creighton (1987). In Anderson, police officers and a Federal Bureau of Investigation agent
conducted a warrantless search of the plaintiff’s house. Although mistaken, the officers believed that a bank
robbery suspect was hiding in the home. The officers entered the home with firearms drawn, assaulted the
plaintiff’s daughter, and knocked the plaintiff to the ground. The plaintiff was arrested and detained overnight
in jail, although no charges were filed. The plaintiff filed suit and the FBI agent filed a motion for summary
judgment based on probable cause to enter the home. The lower court granted summary judgment, but on
appeal the Court of Appeals reversed, holding that Anderson was not eligible for summary judgment. The
Supreme Court reversed the appellate court’s decision and held that Anderson was entitled to qualified
immunity. In a 6- to- 3 decision the Court held that the principles of qualified immunity require that Anderson
be permitted to argue that he is entitled to summary judgment if, in light of the clearly established principles
governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the

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Creightons’ home was lawful. It should first be determined whether the alleged actions are actions that a
reasonable officer could have believed lawful. If they are, then dismissal prior to discovery is required. If they
are not, and if the actions Anderson claims he took are different from those alleged and are not reasonable,
then limited discovery may be necessary.

The Anderson decision is important because it underscored the test of the “reasonable” officer developed in
Malley v. Briggs (1986). In Malley, the plaintiff claimed in his § 1983 suit that his constitutional rights were
violated when a state trooper obtained a warrant to arrest him based on an intercepted phone conversation that
was part of a drug investigation. The charges were dropped and the plaintiff sued for unlawful arrest. The
trooper claimed that he was entitled to absolute immunity. The court rejected this defense, determining that
the officer was entitled to qualified immunity. The court examined whether a reasonable officer could believe
entry into the home was justified by assessing the officer’s actions in accordance with “objective
reasonableness,” and took into account the specifics of the law and the facts known to the officer. The standard
used by the courts is “whether a reasonably well- trained officer in the same position would have known that
his affidavit failed to establish probable cause and that he should not have applied for the warrant.” When an
arrest warrant lacks probable cause, liability is proper in accordance with the Harlow decision.

Box 5.2 Harlow v. Fitzgerald (1982)

Senior aides to President Nixon— Harlow and Butterfield— were accused of violating Fitzgerald’s
constitutional rights by having him dismissed from the Air Force. Fitzgerald asserted that they conspired
to remove him from his post in retaliation for his blowing the whistle on purchasing practices within the
Air Force. The lower court and the appellate court denied summary judgment to the two aides and they
appealed. The United States Supreme Court granted certiorari to examine the issue of the type of
immunity the two aides may possess as advisors to the president when acting in their official capacity.

The Court ruled that the two aides performed discretionary functions and when governmental officials
perform such actions they are entitled to qualified immunity as long as their conduct did not violate an
individual’s constitutional rights.

This case is significant because it established new guidelines for determining how to assert a defense
for “acting in good faith.” To assert a good- faith defense, the defendants must show that they were acting
in accordance with the law at the time of their actions, based on training and experience. Acting in good
faith is an affirmative defense and must be firmly supported by the defendant by showing that he or she
did not violate constitutional rights of which a reasonable person would have known. The decision
applies to § 1983 civil lawsuits and pertains to all criminal justice officials, such as police officers,
correctional/detention officers, probation/parole officers, juvenile officers, and supervisors and
administrators. The Court stated:

… we conclude today that bare allegations of malice should not suffice. … We, therefore, hold that government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.

With this decision, qualified immunity is provided to protect public officers in decisions in which the
parameters of a person’s constitutional rights are unclear. This may occur when: (1) a decision is made
and it is not clearly established that a constitutional right exists; or (2) the right was clearly established
but the officer could not reasonably know that this decision or conduct was unlawful, thereby violating
the constitutional rights of the plaintiff. Based on these two fundamental issues, the court must determine
whether the officer is immune from civil liability. If the court concludes that the law was not clearly
established and that the officer acted reasonably, the officer would be granted immunity.

The principle of “reasonableness” is illustrated in Tarantino v. Baker (1987). Baker, a detective in a North
Carolina sheriff’s department, received an anonymous tip that Tarantino was growing marijuana in the
general store. Baker went to the store at night and found a padlock on the front door and the windows covered.
He went to the back door and knocked and did not receive a response. Baker shined his flashlight into a crack
of the door, based on the “plain view doctrine,” and observed marijuana plants inside the store. Tarantino was

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later arrested. At trial the evidence was suppressed, as the court determined that Baker had exceeded the scope
of a permissible “plain view” search. Tarantino filed a lawsuit claiming that his Fourth Amendment rights had
been violated. The Fourth Circuit Court of Appeals dismissed the lawsuit, finding that a reasonable officer in
Baker’s situation would not know that his conduct violated the plain view rule. From this decision it appears
that when an officer’s actions are close to going over the constitutional line the courts will not hinder an
officer from performing his or her duties.

The United States Supreme Court further addressed the issue of qualified immunity for police officers in
Saucier v. Katz (2001). Katz was protesting a speech of then- Vice President Al Gore at a military base. He was
approaching the podium when two military police officers grabbed him and escorted him away and into a van.
Katz complained that the officers used excessive force, although he sustained no injuries. He filed a civil rights
claim, asserting that his Fourth Amendment rights had been violated. The officers asserted a defense of
qualified immunity. The U.S. District Court for the Northern District of California granted summary judgment,
but on appeal the Ninth Circuit Court of Appeals denied qualified immunity for the officers. The Ninth Circuit
held that qualified immunity and a constitutional violation issue should be treated as one issue before the trier
of fact. The Supreme Court granted certiorari to address the requisite analysis in determining qualified
immunity in situations involving excessive force and reversed the appellate court’s holding.

The Supreme Court re- emphasized that the doctrine of qualified immunity protects government officials
performing discretionary functions from liability as long as their conduct does not violate the constitutional
rights of another. The Court restated that qualified immunity is a defense, but added that a ruling for qualified
immunity requires an analysis not susceptible of fusion with the question of whether unreasonable force was
used in making an arrest. Issues centering on qualified immunity must be taken in proper sequence and based
on the merits of each case.

The question of the appropriateness of qualified immunity is whether a reasonable officer understood his
powers and responsibilities to be, when he acted, under clearly established standards. To address this question,
the Supreme Court in Saucier established a two- part test for determining whether qualified immunity applies.
First, in the initial inquiry, the court must consider the “threshold question”: taken in the light most favorable
to the party asserting the injury, do the facts alleged show that the officer’s conduct violated a constitutional
right? If the facts as alleged by the plaintiff fail to establish a violation, then immunity applies. On the other
hand, if the alleged facts sufficiently demonstrate a constitutional violation, the court must determine whether
the right was clearly established. In making this determination the court must assess whether the right claimed
is more than merely a generalized right; it must be clearly established in a particularized sense so that a
reasonable official in the defendant’s position knows that his or her actions violate that right. If the court
determines that these two components are met in a motion for summary judgment, the court will grant such a
motion. If, however, the court finds questions regarding these two components, the court will deny the motion
and the case may proceed to trial or may be settled out of court.

This decision further supported the Supreme Court’s decision in Anderson (1987). The Court concluded that
the officers’ conduct did not violate Katz’s constitutional rights, because they only used force to protect the
vice president’s safety and were entitled to qualified immunity.

While the Saucier case sheds additional light on the legal principle of qualified immunity and requires a
two- part test to determine how a court will assess an assertion, its application is often problematic and
complicated. In an effort to further apply the tenets of Saucier and to provide further elaboration on what
constitutes qualified immunity, the United States Supreme Court granted certiorari to review the facts in
Brosseau v. Haugen (2004). Responding to a 911 call of two men fighting, Officer Brosseau approached the two
men. The officer’s arrival caused a momentary distraction and Haugen attempted to flee the area. Brosseau
requested backup and Haugen hid himself in the neighborhood. Backup officers responded with a canine to
help track Haugen. Brosseau also learned that Haugen was a suspected felon with a no- bail warrant out for his
arrest. The man that Haugen was fighting and a third man were instructed by Officer Brosseau to stay in a
pickup truck parked in the driveway. Haugen’s girlfriend, along with her three- year-old daughter, was also on
the scene and the officers instructed her to remain in her car.

An officer who was looking for Haugen down the street radioed that a neighbor had seen Haugen in her
back yard. As Brosseau approached the area, Haugen quickly appeared and ran toward the parked vehicles in a
driveway. Brosseau chased Haugen, and Haugen jumped into a Jeep parked in the driveway. Believing that

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Haugen was going to retrieve a weapon, Brosseau unholstered her weapon, pointed it at him, and ordered him
to get out of the vehicle. Haugen ignored her commands and started the vehicle. Brosseau tapped on the
window with her gun several times and the window shattered. Brosseau attempted to grab the keys and struck
Haugen on the head with her gun. Haugen placed the car in gear and began to move. Brosseau jumped back
and to the left, and, fearing for her safety and that of other officers and citizens in the area, fired one shot
through the rear of the driver’s side window, hitting Haugen in the back.

Haugen proceeded down the street in the Jeep and after about half a block realized that he had been shot
and stopped the vehicle. He suffered a collapsed lung and was airlifted to a hospital. He survived the shooting
and subsequently pleaded guilty to the felony of “eluding.” He later filed a § 1983 action, claiming that Officer
Brosseau used excessive force. The district court granted summary judgment to Brosseau after finding she was
entitled to qualified immunity. Haugen appealed and the Ninth Circuit Court of Appeals reversed, holding that
Brosseau had violated Haugen’s Fourth Amendment right to be free from excessive force and that the right
violated was clearly established and thus Brosseau was not entitled to qualified immunity. The United States
Supreme Court reviewed the case to further assess the application of qualified immunity and not the issue of
excessive force per se.

The Court reversed the appellate court’s decision, finding that Brosseau’s actions were reasonable within the
“backdrop of the established law at the time of the conduct.” If the law at the time did not clearly establish that
the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation. The inquiry must focus on the “specific context of the case, not as a broad
general proposition.”

In supporting his argument in opposition to qualified immunity, the plaintiff cited Tennessee v. Garner
(1985), Graham v. Connor (1989), and several lower court decisions. While the Court acknowledged the
standard for using reasonable force in their Graham decision, the Court noted that liability did not attach in
any of the lower court cases, finding that, like Brosseau, the litigated officers had probable cause to believe
deadly force was justified. The Court also noted that the “cases” cited by the plaintiff in support of his
opposition to qualified immunity by no means clearly established that Brosseau’s conduct violated the Fourth
Amendment.

Brosseau is instructive as it further directs a lower court in determining the application of qualified
immunity. The Court underscored the two- part test established in Saucier by noting that qualified immunity
operates “to protect officers from liability.” If an officer had fair notice that his or her conduct was unlawful
and this was clearly established through case decisions, that conduct must be viewed within the context of the
law and the facts and circumstances that faced the officer at the time of the conduct. If the law is not clearly
established at the time of the officer’s conduct, the officer should not be subject to liability. Thus qualified
immunity would be granted to the defendant officer or agency. The Court noted that while Garner and
Graham provide standards of review when assessing claims of excessive force, the standard is general and may
apply to varying circumstances. According to the Court, the shooting in the Brosseau case did not “clearly”
underscore established law of shooting a “fleeing suspect in a vehicle” that would preclude granting qualified
immunity. The Court held that the shooting is far from the obvious one where Graham and Garner offer a
basis for such a decision. Because the plaintiff could only show a “handful” of cases relevant to the shooting,
the Court held that the cases by no means “clearly established” that Brosseau’s conduct violated Haugen’s
Fourth Amendment rights.

The United States Supreme Court re- examined the qualified immunity doctrine in their assessment in
Pearson et al. v. Callahan (2009). After Pearson’s conviction was overturned by the Utah Court of Appeals for
possession and distribution of drugs, which he sold to an undercover informant in his house, he brought a §
1983 allegation asserting that his Fourth Amendment rights had been violated by supervising officers of the
informant. The officers did not obtain a search warrant, but Pearson voluntarily admitted the informant into
his house. The federal district court granted qualified immunity to the officers under the “consent- once-
removed” doctrine, which allows a warrantless police entry into a home when consent to enter has already
been granted. The court concluded that the officers were entitled to qualified immunity because they
reasonably believed that the doctrine authorized their conduct.

Adhering to the procedure established in the Saucier decision (2001), the Tenth Circuit Court of Appeals
denied qualified immunity for the officers, holding that the consent- once- removed doctrine was

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inappropriately applied given the facts of the incident. The court further held that the officers’ conduct was
unlawful because they had not first obtained a warrant, the respondent had not consented to their entry, and
any entry by an informant did not apply to the officers.

The Court granted certiorari to address whether Saucier should be overruled in light of widespread
criticisms. In a unanimous vote by the Court, Justice Alito delivered the opinion. The Court ruled that stare
decisis does not preclude them from determining whether the Saucier procedure should be modified or
abandoned. Re- examining a precedent is appropriate where a departure would not upset past decisions. In
reviewing the Saucier protocols the Court stated that they were beneficial but should not be regarded as
mandatory in all cases. The Court determined that the Saucier protocols frequently hamstring judicial
resources and make it more difficult for a party to appeal a decision. The Court modified its past decision and
authorized more flexibility for judges in the lower courts to determine the facts of each case and to determine
the order of decision- making that will best facilitate the fair and efficient disposition of each case. The Court’s
decision does not prevent lower courts from still applying Saucier; rather, it recognizes that they should have
discretion to decide whether the procedure is worthwhile in a particular case.

Finally, the Court held that the officers were entitled to qualified immunity because it was not clearly
established at the time of the search that their conduct was unconstitutional. The Court maintained that the
consent- once- removed doctrine had been accepted by two state supreme courts and three federal appellate
courts and none of the courts had issued a contrary decision.

Good-Faith Defense

The good- faith defense is not authorized in state tort claims and is commonly used in civil liability lawsuits by
defendant officers. The defense can be asserted by public officials, but not by government agencies, if the
plaintiff can show that the injury can be linked to a policy or custom.

Good faith is an affirmative defense based on a subjective standard that is closely tied to the trial court’s
discretionary powers. The term has been mistakenly referred to as acting without intent to do wrong, or a lack
of evil intention on the part of the officer. More precisely, asserting a good- faith defense has nothing to do
with the intentions of the officer, but asserts the actions of an officer to be “acting in good faith” in accordance
with the law at the time of the incident. Linked to the Harlow decision, the standard that emerges is whether
the officer, at the time the act was committed, violated a clearly established statutory right of which a
reasonable person would have known. There are several factors the court will consider when scrutinizing the
officer’s actions: (1) whether the officer’s actions were based on departmental policy and regulations; (2)
whether the officer was acting pursuant to a valid law that was later invalidated by a court; (3) whether the
officer was acting on the orders of a supervisor and believed the order to be valid; and (4) whether the officer
was acting on the advice of legal counsel and believed the advice was valid (del Carmen, 1995).

The plaintiff bears the burden of pleading a good- faith defense in § 1983 lawsuits (Gomez v. Toledo, 1980).
Thus the plaintiff need not assert in the complaint that the officer acted in bad faith. All the plaintiff needs to
prove is that the injury resulted from a violation of constitutional rights or illegal acts. The defendant officer
must show that he was acting in good faith at the time. To put it differently, the officer must show that he
acted in the reasonable good- faith belief that the action taken was legal. It becomes imperative that police
administrators keep their officers apprised of changes in the law and update their policies and regulations in
accordance with these changes.

Aczel v. Labonia (2004) provides an example of how the court determines whether an officer’s conduct
merits qualified immunity through invoking a good- faith defense. Acting on what they believed was probable
cause, officers of Danbury, Connecticut, arrested Aczel for allegedly sexually assaulting female tenants in
Aczel’s apartment building. A witness observed the officers strike him in the head after he was handcuffed.
The witness further stated that the officers caused Aczel to fall to the ground and heard him screaming
afterward, although he did not personally observe the officers push him to the ground. The witness took a
better position, observed Aczel on the ground in the fetal position, and heard the officers yell at him to stop
resisting, although he was just lying on the ground. He further observed the officers pepper-spray Aczel.

Aczel filed a § 1983 lawsuit and the lower court concluded that there were questions of fact that needed to
be determined before the officers were entitled to qualified immunity. The officers appealed and the appellate
court denied their motion for qualified immunity. The court reasoned that there were too many discrepancies

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between their story and the witness’s and Aczel’s accounts to grant qualified immunity. The court reasoned
that the law was clearly established on what constitutes proper conduct when making an arrest. Further, the
court ruled that the officers gave conflicting accounts as to who initiated the use of force, how much force was
used, and whether Aczel was actually reaching for one of the officers’ weapons. Moreover, the court noted that
the officers on appeal did not show that they were acting in good faith as they failed to argue any independent
reason why they should be entitled to qualified immunity. It is not enough to “merely” assert that the officers
were acting in good faith, there must be supportive documentation that accompanies such an assertion.

Probable Cause and Qualified Immunity

This is a narrow defense arising out of alleged illegal searches and seizures, false arrests, and false
imprisonment. It is available to officers in both state tort actions and § 1983 litigation asserting that their
actions were taken in good faith in accordance with the law at the time. Plaintiffs claiming that officers
violated their Fourth Amendment rights by conducting an illegal search or seizure must show that the officer
lacked probable cause. Immunity can be given to the officer if he or she can show that he or she had probable
cause at the time.

Recall that in Malley the Supreme Court held that immunity would be denied where no reasonable officer
could have believed that he or she had probable cause to obtain a warrant. Defendants seeking immunity based
on probable cause have followed the Supreme Court’s decision in Anderson rather than Malley. In Gooden v.
Howard County, Maryland (1992) officers were granted immunity when they investigated screaming coming
from an apartment. The officers removed the plaintiff, who admitted that she had made a loud noise in order
to receive a psychiatric consultation. Qualified immunity applied because the investigation was objectively
reasonable. In Chew v. Gates (1990), using a dog to search, despite the fact that it bit the suspect, did not violate
clearly established law. The action was objectively reasonable because the crime was serious and the officer’s
safety was in peril.

Limits to qualified immunity involving a search without probable cause arose in Schwab v. Wood (1991).
Attempting to obtain identification, although he observed no criminal activity, an officer met verbal resistance
and profanity. Reasonable suspicion was absent and the subsequent search and arrest were illegal. The plaintiff
was acquitted of the charge of resisting detention. The plaintiff was granted summary judgment because “no
reasonable jury could determine that a reasonably well- trained officer would believe that his actions were
lawful under the circumstances.”

Searches under a warrant are often upheld in accordance with a good- faith defense. Section 1983 lawsuits
based on deficiencies in the warrant itself rarely prevail. United States v. Cancelmo (1995) provided a close
question as to probable cause. Officers drew up a drug search warrant based on conversations interpreted as
using “coded” drug language and other conjectural circumstances. One person was a known drug dealer who
frequently used coded language. Based on this information a warrant was obtained and a reliable informant
purchased cocaine at the plaintiff’s house. Additional drugs found at the scene were held to justify a search of
the entire residence. The Supreme Court upheld the search and stated that “hindsight, always perfect, does not
render a search reasonable or unreasonable.” Officers’ failure to discover drugs was irrelevant.

The United States Supreme Court further addressed qualified immunity and the issue of probable cause in
Groh v. Ramirez (2004). Groh, an agent of the Bureau of Alcohol, Tobacco, and Firearms, applied for a warrant
to search Ramirez’s ranch, where it was reported by an informant that there was a stockpile of weapons,
including automatic weapons, grenades, a grenade launcher, and a rocket launcher. Groh applied for a warrant
to a magistrate judge. In an affidavit supporting the application, Groh listed the weapons to be searched for on
the ranch and the court found probable cause for the search and signed the warrant. The application described
the objects and items to be searched for and seized, but the warrant did not. Groh was required to report those
items but he failed to provide a description of the ranch. Neither the application nor the affidavit was attached
to the warrant and the warrant did not incorporate either of those documents by reference.

Groh and other agents conducted the search at the ranch the next day. Ramirez was absent from the home
but his wife and children were there. Groh informed Ramirez’s wife that he had a warrant to search the
premises and also spoke to Ramirez on the phone, informing him that he was going search his residence. The
search was not fruitful and Groh left a copy of the warrant with Ramirez’s wife, although he did not give her a
copy of the application or affidavit. Later the police faxed a copy of the application to Ramirez’s attorney.

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Ramirez sued Groh and the other officers, claiming that they had violated his Fourth Amendment rights. The
trial court found in favor of Groh, holding that the warrant was valid and that, even if it was invalid, he was
entitled to qualified immunity. Ramirez appealed the decision and the appellate court reversed. Groh appealed
to the United States Supreme Court to address the issue of qualified immunity.

Groh argued that although the warrant lacked the requisite information, the search was reasonable because
it did not exceed the scope contemplated in the warrant application. However, because the particular items
described in the application were not included in the warrant, there was no written assurance the magistrate
had actually found probable cause to search for and seize every item listed on the application. The Court found
that the warrant was invalid because it did not describe with specificity the items to be seized. The warrant
was deficient and Ramirez had been denied information that outlined the scope of the search.

The Court held that, under the Fourth Amendment, absent certain exigent circumstances (which did not
apply in the present case), the police had to obtain a warrant before searching a person’s home, and the
warrant had to be unambiguous. The Court ruled that any reasonable officer would have known that the
warrant to search the ranch was invalid. The Fourth Amendment provides for the right to be free from
unreasonable searches and seizures and the Court regarded the search as “warrantless.”

Groh had a duty to ensure that the warrant was properly construed. The duty was to ensure that the
warrant conformed to the constitutional requirements, not to simply proofread the document. The Court
denied qualified immunity to Groh, stating that such immunity applied when a reasonable officer could have
believed the warrant plainly complied with the Fourth Amendment’s particularity requirement. The existence
of the ATF’s policy on invalid warrants proved to be detrimental to Groh. The Court stated that he should have
known that he could not execute a patently defective warrant. Even a cursory review would have revealed a
glaring deficiency that any reasonable police officer would have known was unconstitutional. A law
enforcement officer had no right to qualified immunity if it would have been clear to a reasonable officer that
his conduct was unlawful.

Qualified immunity applies to the discretionary functions of officers and is available on an individual basis.
It is an affirmative defense made by an officer through his or her counsel. As these cases show, the court will
make its decisions on a case- by- case basis. The key to being awarded qualified immunity includes being
proactive prior to performing the duties of a police or correctional officer. When asserting a claim of qualified
immunity, the officer must show that he or she was following the established law at the time of the incident.
This suggests that officers actually are knowledgeable about state and constitutional law. Officers must show
that their actions were reasonable under the circumstances and that a reasonably trained officer would know
that the conduct was constitutional or unconstitutional, depending on the conduct. These factors should be
addressed in agency policy and procedures, as demonstrated in the Groh decision. Officers need to be trained
on a regular basis and evaluated in the performance of their duties to ensure they are complying with policy
and that their conduct conforms to constitutional mandates. When performing their sworn duties, officers
should clearly and completely document their actions and reasons for acting in a particular manner. Adhering
to these few elements will assist in being granted qualified immunity with more success.

Principles for granting qualified immunity to police officers were further described by the United States
Supreme Court in Messerschmidt v. Millender (2012). Shelly Kelly reported to the police that her boyfriend,
Jerry Bowen, assaulted her. Kelly decided to end a romantic relationship with Bowen and move out of her
apartment. Kelly had been assaulted by Bowen previously and he had an extensive criminal history and
associations with a local gang. Kelly requested police protection during the move and several officers
responded while she gathered her belongings, but they had to leave to respond to an emergency call. Bowen
suddenly appeared after the police left, grabbed Kelly, screamed at her never to call the police on him, and
attempted to throw her over a second- floor railing but Kelly resisted. Kelly managed to free herself from
Bowen and ran to her car. Bowen was able to retrieve a sawed- off shotgun and ran in front of Kelly’s car and
threatened to kill her if she left. Kelly accelerated the car, Bowen fired the shotgun five times, which blew out
the tires of the vehicle, but Kelly managed to escape. Kelly reported the assault to the police, provided a photo
of Bowen, and advised the police that he was an active member of the Mona Park Crips, a local street gang.

Detective Messerschmidt interviewed Kelly and she provided information about the assault, provided
information about Bowen’s association with the gang, informed him that Bowen may be residing at his foster
mother’s house (Millender), and provided the address. Messerschmidt performed a background check on

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Bowen and found that he had been arrested 31 times; nine of these arrests were for firearms- related offenses
and six for violent crimes, including three arrests for assault with a deadly weapon. Further, the background
check revealed that Bowen had ties to two local gangs and confirmed his residence at Millender’s address.

Detective Messerschmidt prepared two search warrants to search the Millender residence. The first affidavit
detailed Detective Messerschmidt’s extensive law enforcement experience, his previous training, his experience
on a “specialized unit” investigation of gang- related crimes and behaviors, and his specialized training in the
field of gang- related crimes and shootings. The second affidavit, integrated with the first, described the
components of probable cause that supported Messerschmidt’s belief to authorize the search. The second
affidavit specified the details of the search at the Millender residence, descriptions of Bowen’s assault on Kelly,
and the background check information that was performed on Bowen; that Bowen had gang ties and an
extensive criminal arrest history; and that the search included weapons that were detailed in the warrant. The
affidavit also detailed the concern for the safety of the community based on Bowen’s previous criminal history
and possession of firearms, and requested a night- time search. Prior to submitting the affidavit, Messerschmidt
had the documents reviewed by his sergeant, his lieutenant, and the assistant district attorney, who approved
it. The magistrate authorized the search warrant and the night- time search.

The warrants were served two days later by Messerschmidt and members of the emergency response team.
Mrs Millender, in her seventies, met the officers at the door with her grandson and daughter. Bowen was not at
the residence. The search resulted in confiscation of Millender’s shotgun, a California Social Security Services
letter addressed to Bowen, and a box of .45- caliber ammunition. Millender legally possessed the shotgun.
Bowen was arrested two weeks later when he was found hiding under a bed in a motel room.

Millender filed a § 1983 lawsuit claiming that the search was overbroad by requesting to search for all
weapons, that the incident stemmed from a domestic violence dispute, that the search lacked probable cause,
that Bowen was suspected of possessing a sawed- off shotgun, and that Millender had nothing to do with the
incident. The lower district federal court found that the warrant was valid, Messerschmidt’s conduct was
reasonable, and that there was probable cause to believe that Bowen was at the residence, supporting a night-
time search. Millender appealed and the appellate court for the Ninth Circuit agreed with Millender that
Messerschmidt lacked probable cause for the search warrant and that he was not entitled to “qualified
immunity,” because any officer would have known that probable cause did not exist beyond the gun used in
the assault and that there was no evidence linking the domestic violence investigation with the search. The
circuit court remanded the case back to the lower court with new instructions and Messerschmidt appealed to
the United States Supreme Court and they granted certiorari.

The Court addressed the issue of whether a police officer is entitled to qualified immunity when he or she
obtains a valid warrant to search for firearms, firearm- related materials, and gang- related items in the
residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed- off shotgun.
They ruled in favor of Messerschmidt and overturned the Ninth Circuit. Chief Justice Roberts wrote the
opinion of the Court. In a six- to- three decision (the other Justices were Scalia, Kennedy, Thomas, Alito, and
Breyer, who wrote a short concurrence), the Court held that the officers were entitled to qualified immunity as
to both the firearms and gang- related materials sought in the warrant. Regarding the former, Justice Roberts
rejected the notion that the officers were limited to seeking only the sawed- off shotgun because it was known
to be the one used in the crime. Given all the facts set out in the warrant— including Bowen’s gang
membership and his attempted murder in public of someone because she had called the police on him— an
officer would not be unreasonable in concluding that the sawed-off shotgun was not the only firearm Bowen
owned. Moreover, the fact that California law allows a warrant to be issued for items possessed with the intent
to commit a public offense further supported the search for all firearms and firearm- related materials. The
Court’s conclusion regarding the firearms was joined by seven Justices, with only Justices Sotomayor and
Ginsburg dissenting.

The Court further held that the officers were entitled to immunity for the search for gang-related material,
though on that point Justice Kagan parted ways and joined the other two dissenters. Chief Justice Roberts first
rejected the notion that the officers were unreasonable in believing that Bowen’s gang membership had
anything to do with the crime, dismissing the dissenters’ reliance on the officers’ later deposition testimony as
both subjective and beyond the scope of the affidavit and warrant. The Court found compelling the fact that
the officers sought and obtained approval from a police superior and deputy district attorney, and that a

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magistrate had approved the warrant. The Court criticized the Ninth Circuit’s refusal to credit that conduct,
and the lower court’s imposition on the officers of an independent duty to ensure at least a colorable basis for
probable cause, as a misreading of Malley.

The Court distinguished this case from their decision in Groh v. Ramirez (2004), in which a “nonsensical”
warrant was so plainly deficient that even a cursory reading would have shown that it failed the Fourth
Amendment’s particularity requirement, rendering the cases “not remotely similar.” Summarizing the issue as
to whether the magistrate here so obviously erred in approving the warrant that the officers should have
recognized the error, Chief Justice Roberts affirmed that such situations are “rare,” and that this was not one of
them. The Court concluded that a reasonable officer could have believed that additional guns as well as gang-
related material would be found at the location and that an objectively reasonable officer may conclude that it
was objectively reasonable to search for such items based on the information provided.

The Court’s decision in Messerschmidt reveals several core principles in the criminal and civil law. First, the
Court has established a series of eight cases in which the fundamental principles and components of qualified
immunity are described that can be granted to criminal justice personnel. An officer who makes a “reasonable
mistake in judgment” will be protected from liability compared to the officer who knowingly violates the law.
Second, the Court reminds officers that the Fourth Amendment requires probable cause based on articulable
rationale in order to obtain a legitimate search warrant. Officers who fully document their belief and adhere to
their training and experience, and document this in their affidavit, will with a high probability ensure that a
magistrate will authorize the warrant. Third, and simultaneously, officers will ensure that they are protected
from liability and will subsequently enhance the probability that a court will grant them qualified immunity
from civil liability should a plaintiff file a lawsuit when they follow the contours of legal precedents.

In Ryburn v. Huff (2012) the Court granted certiorari based solely on the defendant officer’s petition.
Responding to a call from a high school that there was a rumor of a student threatening to blow it up, four
officers initiated an investigation. The officers learned that the student had been bullied by other students and
at least one student believed that the student was capable of carrying out the threat. The officers proceeded to
the student’s home and no one answered the door. An officer called the home phone and no one answered.
Another officer called the cell phone of the student’s mother (Mrs. Huff) who answered and stated that she and
her son were inside the home. The mother and the son exited the home to speak with officers, the officers
informed them of the rumor, and the son stated that the rumor was not true. Sergeant Ryburn asked the
mother if they could continue the conversation inside the house and she refused. Ryburn asked if there were
any guns inside the house. The mother did not answer but quickly turned and ran inside the home. Ryburn
became fearful, did not know what could be inside the house, and followed the mother in. The son followed his
mother inside the house and other officers followed the sergeant into the house for officer safety. Inside the
officers were met by Mr Huff, the student’s father, and he challenged their authority to enter the house. The
officers talked to the father and the son for about five to 10 minutes, did not perform a search, concluded that
the rumor was false, left the home, and notified the school of their finding.

The Huffs filed a § 1983 lawsuit claiming that the officers violated their Fourth Amendment rights by
entering their home without a warrant. The federal district court granted the officers qualified immunity.
Based on Mrs. Huff’s odd behaviors, combined with the information from the school, and based on the rapidly
evolving situation giving rise to a grave concern for the officers’ safety, requiring the officers to make a quick
decision, the court did not fault the officers for not obtaining a warrant. The Huffs appealed and the Ninth
Circuit reversed, holding that the officers should not have been concerned with Mrs Huff’s reaction when they
asked her if there were any guns inside the house, as she was merely asserting her rights. The officers
petitioned the United States Supreme Court and the Court reversed. The Court held that the Ninth Circuit
failed to fully review all of the facts of the case, sanitized the facts, second- guessed the officers’ decision, and
failed to assess the circumstances facing the officers which placed their safety in jeopardy and forced them to
make a split- second decision. The Court granted qualified immunity to the officers, holding that the officers
had an objective reasonable basis for fearing that violence was imminent, and admonished the Ninth Circuit
for second- guessing the officers’ decision.

Qualified Immunity and Clearly Established Law

The Court has continued to examine issues and expound upon legal principles surrounding qualified

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immunity, particularly whether the law was clearly established at the time of the incident. In their decision in
Anderson the Court ruled that clearly established law must be examined and particularized to the facts of the
case under review. In Filarsky v. Delta (2012) the City of Rialto, California, hired a private attorney to assist in
the internal investigation of firefighter Delta. Delta was suspected of working at home on a home project while
on medical leave, instead of returning to work. Officials of the fire department compelled Delta to produce the
building materials which affirmed their suspicions. In response, Delta filed a civil action alleging the private
attorney and other officials violated his Fourth Amendment rights. The Ninth Circuit found that the law was
not clearly established and denied qualified immunity to Filarsky but awarded it to the other officials. The
Court examined the issue of whether the private attorney was entitled to the protection of qualified immunity.
The Court granted qualified immunity to the attorney, holding that it was appropriate to treat all of the
defendants the same. The Court concluded that affording immunity not only to public employees but also to
others acting on behalf of the government serves to ensure that talented individuals are not deterred by the
threat of damages in a civil suit when assisting the government.

In Reichle v. Howards (2012) the Court further clarified qualified immunity involving the First Amendment.
Howards approached Vice President Cheney at a mall, made a comment to him, and touched him. Secret
Service agents arrested Howards and later released him. Howards sued, claiming that his First and Fourth
Amendment rights were violated. The agents were granted immunity on the Fourth Amendment claim as they
possessed probable cause to arrest, but were denied immunity on the First Amendment claim by the appellate
court. Examining whether the law was clearly established the Court reversed, commenting that a right must be
sufficiently clear that every reasonable official would understand what he or she was doing was violating that
right. The Court further opined that since they had never recognized a First Amendment right to be free from a
retaliatory arrest that is supported by probable cause, nor was it clearly established law at the time of
Howards’ arrest, it was reasonable to grant the Secret Service agents qualified immunity.

In Stanton v. Sims (2013) the Court examined the issue of qualified immunity involving an incident where an
officer pursued on foot a misdemeanant into a yard of a third party. As the officer entered the yard to restrain
the person he kicked in a gate which struck and injured the shoulder of Sims, the homeowner. Sims filed suit
and the Ninth Circuit denied the officer qualified immunity. The Court examined two questions: (1) may an
officer enter the home while pursuing a fleeing misdemeanor subject; and (2) was the law in this regard clearly
established? The Court addressed the second question and held that Stanton may have been mistaken for
entering the yard of Sims but he was not “plainly incompetent.” The Court refused to determine the
constitutionality of Stanton’s actions, reversed the Ninth Circuit’s decision, and remanded the case for further
proceedings.

In Wood v. Moss (2014) the Court rendered a decision regarding qualified immunity by examining the issue
of free speech and the ability to maintain security of the President. Protesters against President George W.
Bush sued the Secret Service for damages, alleging discrimination. In a last- minute decision to change the
location for dinner during the campaign, Secret Service agents moved protesters about two blocks away and
beyond weapons reach of the President but allowed supporters to remain nearby. After losing on their first
legal action, the protesters filed a supplemental complaint claiming that the agents acted on an unwritten
policy from the Bush White House to inhibit the expression of disfavored views at presidential appearances.
The Ninth Circuit denied qualified immunity to the agents, ruling that the government may not regulate
speech based on its content. The Court reiterated their position holding that qualified immunity protects
governmental officials from liability unless the official violated a constitutional right. For purposes of qualified
immunity the Court noted that the action of the agents regarding the free speech of persons extends to the First
Amendment. The Court, however, reversed the appellate court’s denial of qualified immunity, holding that the
agents acted with valid security reasons and that there was no clearly established law to control the agents’
response. Commenting on the function and responsibility of the agents, the Court determined that it was
reasonable for the agents to make an on- the- spot decision to increase the safety of the President by expanding
the security perimeter.

In Carroll v. Carman (2014) two Pennsylvania State Police officers obtained information that suspect Zita
possessed a stolen vehicle, possessed two loaded handguns, and may be at the Carman residence. The officers
proceeded to the residence, observed several vehicles parked on the property, and parked in the back of the
property. As they approached the home they observed a shed with its door open and the light on. At the door

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of the shed Officer Carroll announced State Police, looked inside, and did not locate anyone. The officers
continued toward the home and, while standing on the deck, knocked on a side sliding- glass door. A man
stepped out and aggressively approached the officers, the officers explained their presence and purpose, and the
man turned and began to reach for his waist. Officer Carroll grabbed the man’s right arm, the man twisted
vigorously away, which caused Carroll to lose his balance and fall off the deck. A woman appeared on the deck
and the officers again explained why they were at the residence. The woman stated she was Karen Carman,
that the man was her husband, that Zita was not there, and she consented to allow the officers to search the
home. Nothing was found as a result of the search and the Carmans were not charged. Later the Carmans filed
a civil action claiming that their Fourth Amendment rights were violated as the officers unlawfully entered
their property and the deck without a warrant.

The Carmans argued that the officers were precluded from the “knock and talk” exception as they
approached the house from the back yard and not from the front. At trial the judge instructed the jury that
officers’ movements are restricted when approaching a residence in the places in which visitors are expected to
go. The jury returned a verdict for Carroll, the Carmens appealed, and the appellant court reversed, denying
qualified immunity. The United States Supreme Court overturned the Third Circuit and held that a
government official is entitled to qualified immunity unless the official violated a constitutional right that was
clearly established at the time of the alleged conduct. The Court emphasized that their decision did not
consider the officers’ conduct of “knock and talk” at any entrance of a residence, but whether the Third Circuit
misapplied the principles of qualified immunity. The Court remanded the case back to the Third Circuit for
further review consistent with their opinion.

For the first time the Court examined the question of whether a prisoner possessed a constitutional right to
adequate suicide prevention protocols and whether the law was clearly established. In Taylor v. Barkes (2015)
prisoner Barkes was arrested for violating his probation and was lodged in a correctional institution. Barkes
had a history of mental illness and a nurse at the institution conducted a medical evaluation, which included
mental health screening. Barkes was placed in a cell by himself and the next morning a correctional officer
discovered that Barkes had hanged himself. Barkes’s estate filed a § 1983 action alleging that correctional
officials failed to take adequate measures to prevent the suicide and properly screen Barkes upon reception into
the facility. The Third Circuit affirmed the lower federal court’s decision in denying qualified immunity,
holding that the law was clearly established under the Eighth Amendment that proper implementation of
adequate suicide prevention protocols was required.

The Court granted certiorari and reversed, holding that the right to the proper implementation of adequate
suicide prevention protocols was not clearly established at the time. The Court emphasized that they had never
rendered a decision which discussed or established a right to the proper implementation of adequate suicide
prevention protocols. The Court stated, as they have repeatedly commented in previous decisions regarding
qualified immunity, that they do not require a case directly on point to place the constitutional issue beyond
debate. The Court ruled that, since the law was not clearly established, reasonable officials would not have
known that their conduct violated the law and awarded qualified immunity.

The Court reviewed five police use of deadly force cases to further elaborate on the principles of qualified
immunity and the phrase “clearly established law.” In Tolan v. Cotton (2014) the Fifth Circuit Court of Appeals
granted qualified immunity to the officer who shot Tolan after he told the officer from about 20 feet to get his
“f…ing” hands off his mother. The appellate court ruled that the law was clearly established that a reasonable
officer may use lethal force in self-defense when he reasonably feared for his life. The Court did not disagree
but overturned the decision as the appellate court failed to look at the facts in the light most favorable to the
plaintiff (Tolan). The Court did not establish a new legal principle about the use of force or qualified immunity,
rather it intervened because the appellate court misapplied the process for reviewing the granting of qualified
immunity and remanded the case for further proceedings.

In Plumhoff v. Rickard (2014) officers engaged in a high- speed pursuit of Rickard who, with a passenger,
fled from the officers after a traffic stop. Officer Plumhoff joined the pursuit, which was captured on video.
Rickard recklessly drove his vehicle through traffic at speeds nearing 100 miles per hour and intentionally
struck Plumhoff’s vehicle twice. Rickard drove into a parking lot and struck another officer’s vehicle, which
spun him head- on into Plumhoff’s vehicle. The officers approached Rickard’s vehicle and he backed- up,
struck another police vehicle, and Plumhoff fired three rounds at the vehicle. Rickard maneuvered his vehicle,

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narrowly missed striking an officer, and began to flee. Two other officers simultaneously fired at Rickard,
discharging 12 rounds collectively. Rickard lost control of the vehicle, crashed into a building, and died from
multiple gunshots. The passenger died from a combination of the crash and gunshots. A total of 15 rounds
were fired by the officers.

Rickard’s estate filed a civil action claiming excessive force in violation of the Fourth Amendment and
qualified immunity was denied by the lower courts. In a unanimous decision the Court overturned the Sixth
Circuit’s decision, holding that the officers used objectively reasonable force (deadly force) to end a dangerous
high- speed chase. The Court awarded qualified immunity to the officers, holding that the law was not clearly
established in 2004 of using lethal force to prevent the flight of a motorist who operated his vehicle recklessly
during a high- speed chase and in close quarters with the police.

Relying on their decisions in Plumhoff and Scott v. Harris (2007), the Court granted qualified immunity to an
officer who used deadly force during a high- speed pursuit. In Mullinex v. Luna (2015), an eight- to- one
decision, suspect Leja drove from officers while intoxicated on an interstate and refused to stop. The officers
had warrants for Leja’s arrest and he led them on an 18- minute, 25- mile chase; at times speeds reached more
than 100 mph. During the pursuit Leja advised dispatch that he had several weapons and that if the officers did
not abandon the chase he would shoot them. The dispatcher advised the officers of the threat and also advised
that Leja could be intoxicated. Ahead of the pursuit, officers set up spike strips just beyond an overpass, and
were trained in their application. Trooper Mullenix set up on top of the overpass intending to disable Leja’s
vehicle, but had not received training on using a rifle to do so. Mullenix radioed dispatch and advised dispatch
to inform the sergeant of his plan and sought authorization. Before dispatch could respond, Mullenix took a
shooting position on the overpass armed with his service rifle. While waiting for Leja to approach, Mullenix
spoke with a county deputy located beneath the underpass about whether his plan would work and where to
target Leja’s vehicle. Leja approached the overpass about three minutes later, with an officer close behind him,
and Mullenix fired six rounds at the vehicle. The vehicle proceeded over the strips, rolled over two- and- half
times, and Leja died. There was no evidence that the rounds fired by Mullenix hit the vehicle.

Luna (the estate of Leja) filed suit alleging that Mullenix used excessive force in violation of the Fourth
Amendment. The lower court denied the request for summary judgment, holding that Mullenix acted
recklessly and there were questions that his conduct was not consistent with how another reasonably trained
officer would act. Mullenix appealed and the Fifth Circuit affirmed, holding that Mullenix was not entitled to
qualified immunity. The court ruled that Mullenix should have given the spike strips a chance to work, that
Leja’s driving was relatively controlled, and that Mullenix’s decision was objectively unreasonable as he did
not have to make a split- second decision. The court concluded that the law was clearly established and that,
absent an immediate threat, using deadly force violated the Fourth Amendment.

The United States Supreme Court reviewed the case on the issue of qualified immunity only. First, the Court
did acknowledge that Leja— given his intoxicated condition, the threats he made, and leading the officers on a
high- speed chase— posed a threat to the officers. The Court noted that Mullenix feared that if Leja struck the
spike strips he could hit the deputies nearby, or shoot at or run the deputies over by the overhead pass as he
had threatened to do earlier. Relying on their precedents, the Court concluded that Mullenix acted objectively
reasonably. The Court commented that the Fifth Circuit erred in ruling that Mullenix violated the clearly
settled rule that a police officer may not use deadly force against a fleeing felon who does not pose a sufficient
threat of harm to the officers or others. Because the Fifth Circuit applied the incorrect qualified immunity test
involving Mullenix’s use of deadly force, the Court reversed their decision and granted Officer Mullenix
qualified immunity. The Court further admonished the lower federal courts not to define clearly established
law at a high level of generality and that they do not require a case directly on point.

In City and County of San Francisco v. Sheehan (2015) two officers responded to a call at a group home to
assist in controlling a mentally disturbed woman. The woman had refused to eat or take her medications and
threatened the staff and the social worker. This information was provided to the responding officers. When the
officers entered the room, the woman grabbed a knife and told the officers to leave, which they did. The
officers deliberated on a course of action and called for backup. Fearing that the woman may be accessing
more weapons, that she had threatened the group home staff and that she posed a threat of harm to herself, the
officers forced the door open, entered, and sprayed her with pepper spray. The woman refused to put the knife
down and to stop, she advanced toward the officers, and they shot her several times. She survived.

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Sheehan filed a civil lawsuit asserting several claims: (1) that the officers violated the Americans with
Disabilities Act (ADA) for failing to accommodate the woman’s disability; (2) the officers used excessive force;
and (3) that the officers failed to follow their training to minimize their force when encountering a mentally ill
person. The lower court denied the officers’ petition for qualified immunity and the Ninth Circuit affirmed.

The United States Supreme Court decided not to address the ADA claim as Sheehan did not state a valid
claim. The Court further held that the officers’ decision to re- enter the room a second time did not violate the
Fourth Amendment, reasoning that Sheehan’s action presented a continuous exigent circumstance, that the
officers knew she possessed weapons, she had threatened to kill them and others, and delaying their actions
would make the situation more dangerous. The Court ruled that the officers used pepper spray first but
Sheehan advanced toward them, was within several feet from the officers, and that the use of deadly force was
justified. Relying on prior decisions, the Court noted that an officer may make a warrantless entry in order to
protect someone from an imminent injury or to provide emergency assistance to someone who is injured, and
noted that nothing in the Fourth Amendment precludes the officers from using deadly force to protect
themselves (i.e., Michigan v. Fisher, 2009; Scott v. Harris, 2007).

By granting qualified immunity to the officers the Court reasoned that Sheehan could not “establish a
Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have
been avoided, that courts must not judge officers with ‘the 20/20 vision of hindsight,’ even if an officer acts
contrary to the training, however (and here, given the generality of that training, it is not at all clear that they
did so), that does not itself negate qualified immunity where it would otherwise be warranted” (City and
County of San Francisco v. Sheehan, 2015, 1190). Considering the specific circumstances confronting the
officers, the Court ruled that they had sufficient reason to believe that their conduct was justified.

In White v. Pauly (2017) Pauly was involved in a road rage incident, driving his car like he was intoxicated
and swerving at other motorists, including one vehicle with two women inside. The women reported the
incident to 911, placed their bright lights on Pauly, and followed him down an off- ramp. Pauly confronted the
women momentarily in their vehicle, exited, and drove to his brother’s home which was nearby. Officer
Truesdale met the women at the off- ramp, they advised him of Pauly’s driving behaviors, and they provided
Pauly’s vehicle’s license plate number. Dispatch advised that the plate was registered to Pauly’s brother’s
address. Officers Mariscal and White responded to Truesdale’s location and the three decided to speak with
Pauly to get his side of the story. Officer White remained at the off- ramp in case Pauly returned, and the other
two officers proceeded to the Pauly brothers’ address.

On location the officers noticed that there were two houses, observed Pauly’s truck, and approached the
house with the lights on inside, observing two men moving there. The officers radioed Officer White to join
them at the house. The Pauly brothers became aware of the officers’ presence and yelled “who are you and
what do you want?” The officers laughed and said, “State police, open the door, open the door, we have you
surrounded.” The brothers reported that they never heard the officers identify themselves, but heard the phrase
“we are coming in” and so armed themselves. Officer Truesdale observed someone move to the back of the
house. He also moved to the back, and Officer White approached the house hearing yelling. Officer Mariscal
took a cover position behind the pickup truck. White drew his firearm and took cover behind a wall about 50
feet away from the house. A few seconds later Pauly stated “we have guns,” stepped out part way of the back
door, and fired his shotgun twice, while yelling. Seconds later Pauly’s brother pointed a handgun out the front
window in White’s direction. Officer Mariscal immediately fired but missed. About four to five seconds later
Officer White fired his firearm, killing Pauly’s brother.

Pauly filed a civil action claiming excessive force under the Fourth Amendment. The lower federal court and
the Tenth Circuit court denied qualified immunity. The court ruled that the law was clearly established that a
warning must be given prior to the using of deadly force, despite the threat of serious harm and despite the fact
that Officer White arrived late and only heard, “we have guns.” The United States Supreme Court reviewed the
case and granted qualified immunity to Officer White, ruling that he did not violate clearly established law.
The Court concluded that in the appellate court’s analysis they failed to identify a case with similar facts that
Officer White faced. The Court ruled that this case presented a “unique set of facts and circumstances” in light
of White’s late arrival on the scene. The Court held that there is no settled Fourth Amendment principle
requiring an officer to second- guess the earlier steps taken by fellow officers in the circumstances facing
White. The Court vacated the Tenth Circuit’s decision and remanded it for further proceedings.

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The Court has addressed the proper application of qualified immunity since 1982, resulting in 20 decisions;
11 decisions have been rendered from 2012 to 2017. Of these cases, eight have addressed the issue of the police
use of force (six of these addressed issues surrounding the use of deadly force), and three involved the officer(s)
shooting at moving vehicles. In each case since the Anderson decision in 1987 the Court has overturned the
appellate court’s decision denying qualified immunity to the defendant officer(s). Granting qualified immunity
provides an incentive for the officials to perform their duties with confidence in accordance with the law.
Acting outside the boundaries of the Constitution will negate a court in awarding qualified immunity. Further,
authorizing qualified immunity hinges on the principle of whether the law at the time of the incident was
“clearly established.” The Court has continued to remind lower courts that case law does not require a case
directly on point for a right to be clearly established and should not be defined at a high level of generality. To
be on point, the clearly established law must be particularized to the facts of the case under review.

Other Strategies for Reducing the Risk of Civil Liability

Criminal justice personnel have been successful in asserting qualified immunity as a defense in civil lawsuits.
Invoking qualified immunity is, however, a “reactive” approach. The focus of criminal justice administrators
and officers alike in the future should be toward developing pro-active strategies and protection from lawsuits
in order to reduce their frequency. Lawsuits may never be totally eliminated. However, understanding and
implementing key elements of risk management and risk control can help to design a system to control some of
the risk and protect the agency and its personnel.

What Is Risk Management?

Methods for managing risks associated with law enforcement functions are a concern not only for insurance
carriers. Risk management is a process that also includes basic managerial functions: planning, organizing, and
leading, as well as controlling agency losses at a reasonable cost. It uses accepted managerial techniques in
order to preserve the assets of an organization or entity (Ashley & Pearson, 1993; Michigan Municipality Risk
Management Authority, 2011; Narvaez, 2011) and helps to control risk while managing costs. Risk management
is a process of identifying and analyzing potential hazards, exposures, and undesirable events and carrying out
decisions that minimize, control, or eliminate their effects on an organization. The risk management and
assessment process is devoted to continuously improving working conditions and the efficiency of the
organization (Achim, 2014).

The risk management process is comprised of two important elements. Risk financing involves varying
methods from which an agency can choose to pay for potential losses. This element is most likely beyond the
control of agency administrators and left to government officials. The second area, risk control, is within the
influence of administrators, supervisors, trainers, and agency personnel. It is both a managerial and line- level
function, because it seeks to promote a proactive approach to efficient organizational operations and to
decrease risk exposure. Risk control involves several key factors: (1) identifying potential risk exposures of the
organization; (2) examining the alternatives available to either eliminating potential risks or mitigating the
effects of those that cannot be eliminated; (3) selecting the best alternative or combination of alternatives to
deal with each exposure; (4) implementing the chosen techniques; and (5) monitoring the process in order to
alter or improve the program based on observed results. These factors can serve as multiple layers of
protection.

Integrating these factors into an agency’s operating system can reduce the risk of future litigation. They also
assist in developing a systematic framework of protection against liability. Risk management is controlling the
risks inherent in performing criminal justice agency functions, which produces a net outcome of managing
liability. This is a full- time, ongoing responsibility of criminal justice administrators as well as line personnel,
and not a one- time task.

Managing liability can be problematic as it requires assessing, planning, forecasting, and monitoring.
Managing and controlling risk can be associated with hurricane preparation, which has taken on new and
sophisticated measures in recent years. States along the Gulf of Mexico and the Atlantic coast have experienced
their share of destructive hurricanes. Hurricanes Andrew (1993), Floyd (1999), and Katrina (2005) wreaked

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havoc, costing billions in property damage and taking numerous lives. As a result the National Weather
Service has developed more sophisticated technology with which to forecast and warn of hurricanes. However,
despite new technology it is still difficult to predict with pinpoint accuracy how many hurricanes may occur in
a season and where they may strike. Yet this weather phenomenon is still somewhat predictable, as history
reveals that they are likely to occur with some frequency between June and November. Therefore, based on
this assessment, as well as forecasting, the weather service and residents living in these states must take
proactive steps to prepare for the risk of a hurricane, knowing that a hurricane is likely to occur during this
period.

Managing the risk of liability in a criminal justice agency is similar to predicting the occur-rence of a
hurricane. It is obvious that civil lawsuits are likely to be filed against criminal justice personnel for a variety
of reasons, but it is difficult to predict with certainty. Because the risk of liability is foreseeable, personnel must
take a proactive approach in assessing, forecasting, monitoring, and, to the extent possible, controlling the
degree of risk associated with the tasks and functions that are most likely to give rise to potential lawsuits. Like
hurricanes, not all lawsuits can be predicted or eliminated. Yet criminal justice agencies must be prepared to
defend against such risks. This requires administrative and line- level personnel to work together to implement
risk- control practices. These practices should not be another fleeting “administrative program.” Risk
management requires building a system of protections that can reduce the number of lawsuits and more
successfully defend those that will be filed.

Elements of Managing Risk

Job Assessment

The first layer of protection is to conduct a job assessment. Prior to working on reducing or controlling risks, a
thorough assessment of job functions should be performed. A job task analysis is a formal study of the job and
examines the functions of line officers and supervisors. The job assessment will identify the numerous tasks
that personnel perform. Once the tasks are identified they should be examined further in terms of their
frequency of occurrence and “severity,” or criticality (see Figure 5.1).

The National Weather Service predicts hurricanes based on past occurrences and present climatic conditions.
Rating job tasks by their frequency and severity helps to evaluate past and present dimensions of the job in
order to respond to future job tasks. By reviewing tasks in this fashion it will become evident which functions
are performed frequently and which tasks are severe or critical in nature.

Frequency can predict severity/criticality, and an inverse relationship usually exists between the two.
Incidents that occur more frequently tend to be less severe in nature. Conversely, the most severe incidents
occur with less frequency. Another important element to consider is that of foreseeability. A question to ask
while assessing the frequency and severity/criticality of a task is, “What is the foreseeability or likelihood of
the officer performing the task as it relates to the frequency and severity of the task?” If the task or incident is
foreseeable, occurs with some frequency, and is highly critical, then the task/incident should be addressed by a
risk management program. For example, it is foreseeable that an officer may have to use his or her firearm in
the line of duty. The severity or criticality of a police officer firing his or her duty weapon is extremely high,
but the frequency of this occurring is generally low. Officers may go through their whole career without ever
firing their weapon in the line of duty; yet due to the severity/criticality of firing a weapon, they must be fully
prepared to know when to use lethal force as well as being competent in using the firearm. Further, the
frequency of riots occurring within a correctional institution is low, but when a riot occurs, history reveals that
severity may be high. Correctional personnel may never experience a riot in their facility but must be prepared
to respond, should the need arise.

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Figure 5.1 Risk Management in Criminal Justice Agencies

A job assessment that examines the frequency and severity of core job tasks is the first step toward
controlling risk. Other considerations in assessing job tasks are also helpful in determining critical dimensions
of the job. In analyzing the nature of the job, other factors of frequency should be considered, such as citizen
and prisoner complaints, officer incident reports, new equipment and technology, officer misconduct,
internal/external investigations, officer accidents, workers’ compensation claims, past financial losses
(property/personnel), trends in past liability claims (department, region, state, etc.), calls for service, and costs
in liability defense. In addition to the job assessment, these factors can be useful in pinpointing additional
critical components of the job that can be used to strengthen the framework for risk control and, ultimately,
liability reduction. Performing a job assessment can also be beneficial in providing information with which to
update or create new job descriptions that can be essential in directing supervisors in more meaningful
performance evaluations of employees. A job assessment forms the foundation for a risk control system within
the agency.

Policy and Procedure Development

Once a job assessment has been conducted the next step is to develop or revise policies and procedures for the
foreseeable incidents officers encounter. Developing and revising policies and procedures is an administrative
function and comports with legal requirements addressed in the Supreme Court’s holding in Monell v.
Department of Social Services (1978). Administrators can incur liability for failing to direct officers, which can
be interpreted as a lack of direction and guidance through written policies and procedures.

It is acknowledged that not every situation an officer faces can be predicted, and therefore policies can never
be developed that would cover all aspects of the job. Policies and procedures that target the frequent core tasks
of the job should be developed in line with constitutional and state requirements. Policies clarify statutory and
constitutional requirements for officers and should be written and updated to reflect recent changes in the law.

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They provide direction for responding to many situations the officer may encounter. Policies also help to keep
personnel accountable for performing their duties in a reasonable and professional manner (Los Angeles Co. v.
Humphries, 2010; City of Ontario, CA v. Quon, 2010; see Chapter 7). Policies and procedures are at the core of
the criminal justice agency and provide a layer of protection against assertions of liability for failure to direct.
Policies and procedures should be reviewed annually and revised as the nature of the job alters and as the law
changes.

Risk Control Strategies

Once the job assessment and policy development have been accomplished, the next step is to select a strategy
or combination of strategies for controlling the risk of liability. The risk control strategies are: (1) avoidance; (2)
prevention of losses; (3) reduction of losses; (4) segregation of resources; and (5) transference of risk. Depending
on the foreseeability of an incident and its frequency and severity, the approach may be to use one or a
combination of strategies. Many factors may emerge that will influence the selection of a strategy, such as the
number of department personnel, size of the jurisdiction, budget constraints, resources, facility constraints,
legal requirements, and accreditation stipulations. These factors should be kept in mind when determining
which strategy to use. Moreover, when considering a specific strategy, criminal justice personnel must consider
their respective agency, available resources, and requirements that may preclude a particular strategy.

Risk Avoidance

The luxury of voluntarily avoiding a task or function regardless of its frequency is non- existent in many
jurisdictions. Providing 24- hour operations in corrections or policing is required. Thus there is no option to
avoid performing job duties. From the job assessment, however, some functions may emerge that can be
curtailed or refined in order to decrease the frequency in participating in an activity. For example, some police
departments have instituted a no- chase policy, based on the high degree of risk of property damage, injury,
and death involving the officer and the public. Other police departments have instituted a practice of not
providing escort services for funerals due to the risk of vehicle accidents and injuries. Some agencies limit the
firing of a weapon from or at a moving vehicle unless the officer’s life is in imminent peril. The practice in a
majority of detention centers is to require medical clearance from a physician prior to admitting a prisoner
with obvious physical injuries.

Loss Prevention

Loss prevention involves instituting measures prior to an incident. This is undertaken to prevent a loss from
occurring. Examples include the creation and implementation of policies and procedures, in- service training,
authorizing and issuing proper equipment, keeping equipment current and operational, equipping transport
vehicles with screens, and facility design. The primary objective of loss prevention is to prevent the frequency
of the loss- causing events.

Loss Reduction

Loss reduction is different from loss prevention in that it attempts to minimize the loss, rather than preventing
the loss. In prisons or detention centers, physical and sexual assaults between prisoners sometimes occur.
Instituting proper classification practices and regular personal security checks may not totally prevent such
assaults, but may help to reduce the number of assaults within the facility. In policing, requiring a minimum of
two officers to respond to domestic violence calls may help to reduce injuries to the officers and individuals
involved. Additionally, some agencies permit only two vehicles to engage in high- speed pursuits and may also
place a ceiling on the maximum speed of the police vehicles.

Segregation of Resources

Segregating resources consists of maintaining department resources in separate locations so that no single

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event significantly depreciates the use of equipment. This involves duplication of equipment (maintaining
more than one) such as vehicles, backup vehicles, spare equipment, restraints, facilities, and perhaps
overlapping shifts during critical periods. It would also include separating resources or using multiple facilities,
such as precincts or satellite centers, for over-flow or efficiency purposes. Resource segregation is intended to
reduce the severity of potential losses because the agency will still be able to function.

Risk Transfer

Transferring risk involves strategies that move, or transfer, risk from one party to another. In policing this
could mean a policy that requires officers to transport a mentally impaired person to a mental health facility in
order to obtain psychiatric clearance prior to transporting him or her to a detention center. In a detention
center this could involve requiring mental health professionals to evaluate a suicidal prisoner in the jail at
initial reception or upon discovering suicidal behaviors. This strategy controls risks by identifying situations in
which the officer or agency can transfer risk to another before incurring a loss. This is closely related to risk
avoidance and loss prevention.

Training

Training is an essential managerial responsibility. The Supreme Court ruled in City of Canton v. Harris (1989)
that training is to be provided for recurring job tasks. Thus performing a job assessment not only identifies
frequent and core job tasks but also can be instrumental in directing training efforts.

All personnel should receive ongoing training commensurate with their duties and in the proper
implementation of policy. High- profile or high- liability areas should be addressed regularly. For example,
empty- hand control techniques are frequently used by police and correctional officers. Many lawsuits have
been filed that assert that the officer used excessive force during arrest or when subduing a combative person.
Subject control training should be provided regularly, along with training in the department’s use- of- force
policy. Personnel must be competent in deciding when and how much force to use in various situations, and
must do so within the boundaries of policy and the law.

Training today is not a luxury. It must be the goal of each criminal justice executive to provide regular,
ongoing training to all personnel. The nature of business in criminal justice agencies requires officers to have
the latest information pertaining to the legal issues of performing their job. Training in legal and liability issues
should be provided annually. Changes in societal conditions, offender characteristics, treatment strategies,
crime prevention approaches, and improvements in technology require updated training for all personnel.

As new policies and procedures are developed or revised, all employees should receive a personal copy of the
policies as well as training on the new policies. Testing employees’ comprehension of policies is suggested. This
strategy for disseminating policies and procedures can assist in proper implementation at the line level and
illustrates that there is a level of understanding of how the policy is to be followed. Supervisors should also
receive a copy of the policy and appropriate training. Administrators should seek many methods for training
their personnel, such as classroom presentations, simulation training, roll- call training, on- the- job training
(field training), agency videotapes of incidents, interactive computer- based training, seminars, conferences,
and training through the internet. Training and documentation of training are key elements in risk control and
are required by the courts. They provide an important layer of protection against liability (Ryan, 2008).

Field Implementation

It is an understatement to say that supervisory personnel are critical in any organization. Supervisors, as an
extension of management, are an important component in reducing liability. There are two primary
responsibilities of supervisors: (1) implementing policies and procedures, and (2) enforcing them. Historically,
in many criminal justice agencies, supervisors received little attention in management training and the proper
methods for implementing policy and personnel evaluations. Many organizational and liability problems can
be corrected through proper training of supervisory personnel.

To avert and reduce liability, supervisors must be prepared to fulfill their responsibilities. The Field Training
Officer (FTO) program in policing and corrections has provided new officers with a more efficient transition

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between the training academy and assuming the roles and responsibilities of an officer. Criminal justice
administrators should also consider adopting or creating a similar program for newly promoted supervisors.
After successfully completing such a program, administrators must remain committed to providing ongoing
training for supervisors. Supervisors need to be trained in management philosophies, strategies for dealing with
a diverse work group, legal and liability issues of management, administrative law, criminal law updates,
policies and procedures updates, planning and goal setting, leadership skills, motivating the contemporary
employee, managing stress, and evaluating employee performance. Maintaining a commitment to providing
training to supervisors provides another layer of liability protection for the agency and all personnel.

Supervisors must also understand the disciplinary process within their departments. When personnel have
violated policy, supervisors must respond appropriately based on the situation. They are the overseers and
enforcers of policy and must ensure that personnel perform their duties in a professional and legal matter.
Where there is a cavalier discipline philosophy, allegations of failure to supervise expose the department to
litigation. As a matter of course, supervisors must be familiar with disciplinary procedures and the legal issues
surrounding their responsibilities.

Administrators are encouraged to consider maintaining close contact with their risk management provider if
they are a member of a risk management pool. Myriad services are routinely provided by these entities, which
can assist an agency in averting the risk of lawsuits and increasing officer safety. For example, risk
management providers can offer agency risk assessments, audits of policies and procedures, model policies,
training for agency personnel, and training videos on high- liability areas. The Michigan Municipal Risk
Management Authority provides risk management services for law enforcement and detention agencies in
Michigan. During the last 20 years they have performed liability assessments for their constituents in which
they have developed model policies, training videos, and training on a variety of legal and officer safety issues,
which have assisted in reducing the number of lawsuits and effectively defending cases that are litigated.

Similarly, the Legal and Liability Risk Management Institute (LLRMI, 2017) provides training, legal
publications, and services for law enforcement and correctional agencies. Underscoring the importance of
policy and procedure and officer performance in the field, they have assembled a quick reference legal guide
for law enforcement (Ryan, 2005) which provides a brief overview of United States Supreme Court and lower
court decisions. Highlights of each decision are noted, providing easy access to the focus of the decision, which
can underscore agency policy and serve as guidance for officers in the field when they are faced with making
decisions on various matters. Further, they have designed decision- making checklists for officers of frequently
performed tasks that are addressed by policy and case decisions. For example, vehicle searches are performed
with some frequency and carry the potential of a high risk of civil liability. Based on several United States
Supreme Court decisions underscoring the Fourth Amendment and vehicle searches, LLRMI has designed a
checklist that officers may refer to which incorporates policy, case law, and focus points to consider prior to
conducting a search. The checklist includes components to developing probable cause, ordering occupants out
of the vehicle, search incident to an arrest, and an inventory search, just to mention a few. These checklists
embody significant sections of a working policy, can be used in training, and are used in the field when
performing a task.

These two illustrations provide examples of how agencies can access their risk management provider, who
can assist in risk control through the integration of case law, policy, and training through the design of
checklists. These checklists provide a tool that can guide an officer in decision- making in high- liability areas.
They represent a framework with which to assess an incident, make a decision, and later provide an
explanation to justify the decision. Such assistance to officers helps in controlling risk in decision- making and
can avert cases of liability. Even if an agency is not a member of a formal risk management program, an
agency may replicate the process by researching high- liability areas and applicable case decisions, develop or
revise policy accordingly, develop the checklists, and provide training for their officers. Such endeavors
underscore proactive risk management techniques and illustrate risk control techniques.

Monitoring and Evaluating Risk Control

Once these risk control procedures have been instituted, supervisory personnel should monitor them. Policies
that create new programs should be monitored to ensure proper implementation. Monitoring the process is

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essential in successful implementation and can ensure accountability with all personnel. Supervisory personnel
are responsible for working closely with line personnel as they integrate policy with action. When problems
emerge in implementing the policy, supervisors need to evaluate the problem and work toward its resolution.
Rather than ignoring problems or resorting to old methods, a quick response to emerging problems will provide
for more efficient line operations and decrease the risk of liability.

After a reasonable period of monitoring a policy, program, or new activity, constructive evaluation should
occur. Line officers and supervisors should collectively evaluate the successes and problems associated with the
activity. Modifications in responsibilities of personnel may result and should be worked out accordingly.
Evaluation helps to measure the success and impact of the policy. Many criminal justice agencies embark on
new programs or systems and do little or nothing to monitor and evaluate the outcome. Evaluation is
necessary to determine the future activities of those who are participating so that changes may be made as
warranted. Identifying problems early can help make needed changes, assist in reducing risk, and possibly
reduce liability.

Net Benefits

Although adopting and developing risk management strategies can create more work for all employees in an
organization, it has several positive management and line- level benefits. First, one of the primary goals of all
employees is to work toward reducing the exposure of risk of personnel or property loss. Officer safety issues
in corrections and law enforcement should be of utmost concern to administrators and line officers. An
ongoing commitment to achieving this can be accomplished through risk management approaches. Second,
developing and maintaining risk management techniques will create more efficient agency operations and
simultaneously improve performance of all personnel. Street- level and cell block management efforts can be
significantly improved. Work- related accidents can be decreased, as well as workers’ compensation claims.
Citizen and prisoner complaints can decrease as officers work to resolve problems at the root level. Analyzing
the job can pinpoint the need for revision or development of critical policies and procedures that will in turn
help to focus ongoing training for all personnel. Third, developing and maintaining a risk management
program are administrative functions. Risk management techniques are at the center of basic management.
Management is responsible for the activities of the organization and how employees accomplish them. This can
be achieved through planning, forecasting, controlling, communication, budgeting, staffing, supervising,
training, and directing the tasks of all employees. All command personnel should work toward acceptable
methods to achieve organizational goals by minimizing the risks associated with the job. Gaining the
compliance of all personnel to work toward ways to reduce the risks of the job can also help keep employees
accountable.

Finally, maintaining a risk management program will significantly assist in defending lawsuits that may
arise. A risk management program should not be implemented primarily out of concern about being named as
a defendant in a lawsuit. Establishing an ongoing process of risk management should be undertaken for the
reasons listed above. By adhering to these risk management principles, an agency will place itself in a much
better position to defend a lawsuit. Thus a risk management program serves as a proactive management system
that increases the ability of the organization to operate more efficiently, control foreseeable risks, direct
employees in the performance of their duties, and work toward reducing identifiable job- related risks. In this
way, should a lawsuit be filed against the department, management has a foundation on which to assert a legal
defense. Adopting this proactive approach is preferable to attempting to build a reactive defense against a legal
challenge after a high- profile incident. Maintaining a risk management system can show that the department
and employees are acting in good faith in accordance with the law and professional industry practices. It also
provides a mechanism whereby the agency can assert a more likely defense of qualified immunity. To
successfully invoke a defense of qualified immunity, an agency must have a management system that
illustrates that constitutional mandates are in place and are followed. Creating and maintaining such a system
can be most helpful in persuading a court that the agency should be granted qualified immunity.

Examples of Best Practices

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Best practices is a method or technique that has consistently shown results superior to those achieved with
other means and is used as a benchmark. Best practices is a superior method or innovative practice that
contributes to the improved performance of an organization, usually recognized as “best” by other peer
organizations. It implies accumulating and applying knowledge about what is working and not working in
different situations and contexts, including lessons learned and the continuing process of learning, feedback,
reflection, and analysis (what works, how, and why; Narvaez, 2011). The following are examples of police
agencies that have instituted principles of risk management that illustrate best practices.

Michigan Municipal Risk Management Authority (MMRMA) has been providing risk management services
to municipalities and counties in Michigan since 1981. Among the many services offered, MMRMA provides
model policy development, training programs, and training DVDs for constituent law enforcement agencies
including police officers, deputies, detention officers, and administrators. MMRMA has been successful with
these agencies in implementing risk management strategies through policy implementation and training
programs that have reduced the risk of liability claims in several topic areas. In 2009 MMRMA was recognized
for its achievements by the Public Risk Management Association, the national association of risk management,
for developing two programs that serve as best practices in the industry.

In the first program, MMRMA provided financial assistance to over 125 law enforcement agencies to
purchase Tasers. A model program was designed which incorporated the following components: certification
of instructors within the agency; development of a model policy that identified protocols for deploying the
Taser; training in the policy for all personnel; training in associated legal and medical issues; and training on
using the device. Further, if an officer deployed a Taser during an incident a report of the encounter is
required, the report is reviewed by a supervisor, and all incidents are reviewed. A database was developed to
analyze the incidents where the Taser was deployed in order to measure field- use trends. During a five- year
review, from 2003 to 2008, MMRMA (2011) reported the following results of 1,000 filed activations of the Taser:
subject injuries decreased by 80 percent; officer injuries decreased by 65 percent; and excessive force claims
declined by about 60 percent.

In the second program, MMRMA developed an eight- hour training program designed to improve police
officers’, detention officers’, and supervisors’ response to violent restraint encounters where the restrained
individual suddenly dies in custody after restraint. Similar to the Taser program, MMRMA first conducted an
instructor program and certified instructors to travel around the state to conduct eight hours of training in
Sudden Deaths in Custody. The program is designed to teach officers how to recognize common signs and
symptoms associated with these deaths, protocols for appropriate response, how to respond to special needs
populations, recommended use of force strategies, legal issues regarding officer response, medical care and
response issues, report writing and documentation of the incidents, and investigation protocols. Since the
implementation of the program more than 800 officers and supervisors have been trained, agency policies have
been revised, and five cases have been documented where officer response has prevented a sudden custodial
death. MMRMA (2011) reported that, between the two programs, claims of excessive force have declined by 66
percent and payouts or losses in claims have declined from $2.7 million to $192,300, a fall of about 80 percent.

Revising policy, practices, and training of officers has led to other models of best practices in law
enforcement. Police officers and detention officers with regularity confront individuals with a mental illness.
The Memphis, Tennessee, Police Department formed a partnership with mental health professionals and
designed a training program and policy in 1988 on how to respond to the mentally ill, calling it the crisis
intervention team (CIT). CIT is one of several models of collaboration between law enforcement and mental
health. Specifically, CIT is a police- based specialized police response. Other strategies are police- based mental
health responses, in which the police department hires mental health consultants to assist with mental health
crisis calls, and mental health- based specialized responses, which are typified by mobile crisis units. Based on
the success experienced by the Memphis Police Department, the program is being employed by numerous law
enforcement agencies and is considered by many to be the most rapidly expanding and promising partnership
between law enforcement and mental health professionals. The Bureau of Justice Assistance estimates that
there are more than 400 CIT programs operating in the United States (Reuland & Schwarzfeld, 2008).

Compton, Bahora, Watson, and Oliva (2009) reviewed 14 published studies on agencies using the CIT
program. They found that the Memphis model is serving as the prototype (best practices) for large police
departments across the country. These departments have revised their policies and procedures for responding

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to the mentally ill and provide 40 hours of training to selected officers in response to protocols and how to
work with mental health professionals. The researchers reported that CIT implementation appears to be
associated with decreased use of high- intensity police units such as Special Weapons and Tactics (SWAT)
teams, a lower rate of officer injuries, and increased referral of individuals with mental illnesses to treatment
facilities by law enforcement officers. Further, they reported that officers are more likely to use less- lethal
force equipment in lieu of firearms in a majority of incidents, that officers transported arrestees to the hospital
rather than the jail, and that officers spent an average of 70 minutes at the hospital per incident.

Overall the research shows support for the notion that the CIT model may be an effective component in
connecting individuals with mental illnesses who come to the attention of police officers with appropriate
psychiatric services. Research indicates that the training component of the CIT model may have a positive
effect on officers’ attitudes, beliefs, and knowledge relevant to interactions with such individuals, and CIT-
trained officers have reported feeling better prepared in handling calls involving individuals with mental
illnesses. On a systems level, CIT, in comparison to other pre- and post- diversion programs, may have a lower
arrest rate and lower associated criminal justice costs. The goals of CIT can be viewed from different
perspectives; some see it as an officer safety program, others as officer educational in- service training, and yet
others as a community safety effort, a risk management program, or a type of jail diversion, among other
viewpoints. Regardless of the view, CIT is more than a training program because it promotes a community
effort and partnership between the police and community mental health to provide the best intervention
response based on the needs and behaviors of the individual.

As a best practice, many of the components of consent decrees which have emerged from Department of
Justice investigations in accordance with § 14141 and from the Civil Rights of Institutionalized Persons Act
(CRIPA) can serve as a model for administrators to consider when determining how to best prioritize the risk
management assessment process whereby organizational liability risk exposure is minimized. First, high-
profile policies and procedures like the use of force, pursuits, responding to mentally impaired and special
needs arrestees, arrests, searches and seizures, providing medical care, conditions of confinement, classification,
sexual harassment, supervision and discipline of officers, officer misconduct, and performing internal
investigations are common areas in which agency policies should be reviewed and revised as warranted.

Second, the Field Training Officer (FTO) program should be enhanced and bolstered in the agency by
performing a formal assessment of its implementation within the agency. A similar program for new
supervisors should also be developed. Third, the agency should develop a data tracking system which collects
and analyzes use of force incidents, pursuits, and special operations call outs. An annual report could be
developed which provides an assessment of these incidents, which can assist in focusing training. The data can
also assist supervisors in addressing marginal performers.

Fourth, supervision of officers in the field and performance evaluations should be strengthened, recognizing
and leading to rewards for high performance and corrective discipline for poor employee performance. Fifth,
administrators should consider developing an Early Identification and Intervention System (EIIS) which is tied
into the data collection system, performance review, and the supervision accountability system. The EIIS can
assist in identifying marginal performing officers early so that supervisors may take remedial steps before
signifi-cant problems develop.

Sixth, the agency should develop a formal training system which provides training on a regular basis and
adheres to state standards. Where feasible, in- house instructors should be certified to teach various topics and
certifications of instructors should be maintained. Some of the common training topics should be regularly
addressed: ongoing training on policies and procedures; legal issues on using force, arrests, searches and
seizures, requesting warrants, and supervisory liability issues; operating emergency vehicles; use of force
(subject control techniques, restraints, restraint chairs, conducted energy weapons, deadly force, firearms,
canines, projectiles, aerosols, and impact weapons); using cover and tactical approaches to responding to
various arrest circumstances; techniques for de- escalation of confrontations; appropriate strategies for
conducting internal investigations; ongoing managerial training for supervisors; responding to the mentally
impaired and special needs populations; and sexual harassment. Seventh, administrators should develop a
system which not only implements policy and training in the field but directly involves supervisors
monitoring, assessing, and correcting improper implementation of policy as field activities occur. Finally,
administrators should formalize a wellness and safety support system for all officers. Providing resources and

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access to programs for officers to enhance their safety and overall wellness reinforces an agency culture of
maintaining healthy and fit officers to perform the stressful and dangerous job efficiently. Integrating these
components into the agency’s organizational risk management system can assist in maximizing the operations
and safety of the officers, as well as reducing the risk of exposure to liability.

While many more illustrations could be cited, these examples portray best practices that can minimize the
risk of litigation. These three examples illustrate that agency managers can reduce the risk of costly liability by
applying core risk management principles of policy development/revision, training, and follow- up
implementation and monitoring in the field by supervisors. The examples also illustrate that, beyond reducing
litigation risks, officer safety concerns are also enhanced. The multi- purpose of risk management serves as a
holistic method to enhance the standards and operations of the agency in the most efficient manner. This
assists in making the agency more accountable to the communities it serves (Martinelli & Shaw, 2011).

Summary

This chapter has explored two primary components for responding to civil lawsuits filed in accordance with §
1983. First, law enforcement officers do not have absolute immunity, but rather qualified immunity. They may
assert such a defense by demonstrating that they should be immune from such liability because they were
acting in good faith. In order to successfully prevail with such a claim, criminal justice personnel must show
that they were acting in accordance with the current status of the law at the time, and within accepted training
and policy provisions. Acting in good faith has been a successful defense in the past.

Qualified immunity can protect an officer from many of the risks associated with civil liability for alleged
constitutional right violations (Stone & Berger, 2009). To maximize the benefit of this doctrine, officers should
pay close attention to performing their duties within the guidelines of the law; be knowledgeable of their
agency’s policies and procedures; and perform their duties in accordance with their training. Keeping current
in the legal aspects of the job and reviewing agency policies will not only assist an officer in adhering to
agency standards but can also be used to successfully defend against a constitutional rights claim resulting
from citizen- officer contact.

Second, in order to reduce litigation and provide a proactive approach to risk management, risk control
strategies were presented. Criminal justice agencies should strive to incorporate risk reduction strategies
throughout the organization, as identified through an ongoing process of risk assessment. This means that
officers and supervisors participate together in identifying the frequency and severity of risks specific to job
tasks that officers perform routinely. Once the risks have been identified, implementing elements of risk
control should be considered in designing a risk control program so that managers and line- level employees
may work toward more efficient agency operations in an effort to reduce the risk of liability in the future.

It is impossible to eliminate liability for police or correctional agencies. Therefore criminal justice agencies
must strive to be proactive in reducing such risks. Combining the two components of immunity and risk
management can place the criminal justice agency in a viable position to defend future claims of liability.
Criminal justice managers should closely examine these strategies and incorporate them as needed.
Implementing risk management strategies remains one of the most important mechanisms in insulating a
department from needless civil litigation. A majority of the consent decrees filed under § 14141 stipulate that
police agencies undertake a system of risk management. Thus managers should voluntarily incorporate these
strategies into the overall operations of the department. In doing so, managers show a good- faith effort in
taking proactive measures to perform their sworn duties within the framework of the law.

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Bibliography

Achim, A.C. (2014). Risk management issues in policing: From safety risks faced by law enforcement agents to
occupational health. Procedia Economic and Finance, 15, 1671–1676.
Ashley, S. & Pearson, R. (1993). Fundamentals of risk management. Livonia, MI: Meadowbrook Insurance
Group.
Compton, M.T., Bahora, M., Watson, A.C. & Oliva, J.R. (2009). A comprehensive review of extant research on
Crisis Intervention Team (CIT) programs. Journal of the American Academy of Psychiatry and the Law, 36, 45–
55.
del Carmen, R.V. (1995). Criminal procedure for law enforcement personnel (3rd ed.). Monterey, CA:
Brooks/Cole.
Legal and Liability Risk Management Institute (2004). Guide to motor vehicle searches—Fourth Amendment.
Rochester, MN: Legal and Liability Risk Management Institute.
Legal and Liability Risk Management Institute (2017). Officer checklists, www.llrmi.com.
Martinelli, T.J. & Shaw, L.E. (2011, March). Updating ethics training: policing privacy series, managing risk by
reducing internal litigation. Police Chief, 60–62.
Michigan Municipal Risk Management Authority (2011). Safe-guarding our members. Annual report, pp. 1–16,
Livonia, MI.
Narvaez, K. (2011). Success stories: public entities adopt ERM best practices. Fairfax, VA: Public Entity Risk
Institute.
Reuland, M. & Schwarzfeld, M. (2008). Improving responses to people with mental illness: strategies for
effective law enforcement training. Bureau of Justice Assistance, U.S. Department of Justice. Washington, DC,
www.ojp.usdoj.gov.
Robinson, C.D. (1992). Legal rights, duties and liabilities of criminal justice personnel (2nd ed.). Springfield, IL:
Charles C. Thomas.
Ryan, J. (2005). Quick reference: legal guide for law enforcement. Rochester, MN: Legal and Liability Risk
Management Institute.
Ryan, J. (2008). Managing law enforcement liability risk. PATCE Newsletter, 3, 1–5.
Silver, I. (2017). Police civil liability. New York, NY: Matthew Bender & Co.
Stone, M.P. & Berger, M.J. (2009). The scope of federal qualified immunity in civil rights cases. AELE Monthly
Law Journal, 2, 501–508.

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6
Administrative and Supervisory Liability

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Overview

Criminal justice administrators and supervisors, like other organizational executives, are responsible for
planning, controlling, organizing, budgeting, staffing, directing, reporting, and supervising employees.
Additional responsibilities include managing emergencies, establishing priorities, knowledge of day- to- day
operations, community and institutional issues, technology, the political process, and managing people. One
major area of concern is knowledge of legal and supervisory liability issues. The developing case law in this
field strongly suggests that administrators and supervisors need to know the limits of their jobs and need to be
aware of their subordinates’ competence and performance.

Managing people is central to the effective operation of any organization. Criminal justice personnel
exercise legal authority over citizens and prisoners. Therefore they must exercise a high degree of skill in using
their authority and discretion when executing department policy and enforcing the law. Legal actions against
personnel frequently result from decisions in which they have implemented a specific policy that violated the
constitutional rights of another. For example, a policy directs police officers to use a roadblock to stop a fleeing
motorist and officers place a semi- truck with a trailer just over the crest of a hill at night. The fleeing motorist
hits the roadblock with his car and dies. This could be considered an unwarranted use of excessive force. Other
civil litigation may result from allegations of officers failing to perform their legally assigned duties,
performing their duties negligently, misusing their authority, using excessive force, or depriving an individual
of his or her constitutional rights.

Criminal justice administrators and supervisors face potential liability that arises out of supervising their
employees. Because administrators are responsible for many managerial functions, these duties frequently
expose administrators to liability. Any employee action that allegedly deprives an individual of a protected
right may in turn expose the administrator to liability. This often places administrators in a position to explain
why they should not be held responsible for the employee’s conduct. Such situations are often difficult to
defend and make the administrative chain of command more vulnerable to liability, as well as heightening the
potential for organizational liability.

Virtually every action taken by an administrator in dealing with citizens, prisoners, and employees involves
potential liability and legal consequences. Administrators must manage within the context of legal supervisory
responsibilities. This does not suggest that managerial decision- making be impeded by paranoia— rather, it
implies that the efficient operation of the contemporary criminal justice agency be maintained within working
guidelines of potential supervisory liability issues. The duty of supervisors is to know their own potential for
liability when they perform their basic managerial functions. Carrying out a supervisor’s responsibilities
requires not only developing the competency (directing, planning, budgeting, evaluating, etc.) to lead the
organization, but also requires that administrators concomitantly continue to develop competency in hiring,
training, supervising, and firing, to reduce their own risk as well as reducing the risk of the organization to
litigation. A thorough understanding of the fundamental liability issues will equip the administrator to
accomplish this objective.

Supervisory Liability Issues

Basis for Liability

xs

Every criminal justice administrator and supervisor should be familiar with Title 42 United States Code § 1983
(see Chapter 3). Since 1978 this has been the primary vehicle by which administrators have been sued for
violations of constitutional rights resulting from their management responsibilities. It is used to apply the
rights guaranteed by the Constitution to the everyday decisions and policies of state and local government
agencies. Administrators and supervisors must be familiar with the law and agency policies in order to avoid

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liability for violating an individual’s constitutional rights.
Section 1983 lawsuits often name the supervisor along with the officer. This practice is based on the theory

that the officer acts for the agency and, therefore, what is done reflects agency policy and practice. As a legal
strategy the plaintiff includes the agency and supervisors, because the higher the position the employee holds
the closer the plaintiff gets to the deep pockets of the county or state agency. Chances of monetary recovery
are increased if supervisory personnel, by virtue of their position, are included in the lawsuit. Moreover,
naming administrative and supervisory personnel may also create a conflict of interest in the legal strategy for
the defense, thus strengthening the plaintiff’s claim against one or more defendants.

Policymaker

The United States Supreme Court has held that supervisors can be held responsible for acts of their employees
(Monell v. Department of Social Services of the City of New York, 1978). Monell expanded the meaning of the
“every person” clause in § 1983 to include government entities. The supervisor is not liable because an
employee violated the individual’s constitutional rights, but may be liable for failing in his or her supervisory
responsibilities when the failure results in a violation of constitutional rights (see Box 6.1).

Under § 1983, the doctrine of respondeat superior (a Latin phrase meaning “let the master answer”) does not
form the basis of liability (Polk County v. Dodson, 1981). Under the common law doctrine of respondeat
superior, the master is responsible for the actions of the servant. It does not, however, apply to public
employment, because public officials are not the “masters” of their employees; they serve the government
agency. This has been the case for much of our national history, as municipal and county employers of
criminal justice agencies were not held liable on this theory. To attach liability would move into the realm of
sovereign immunity. In addition, police officers acted as agents of the law sworn to uphold the law, not as
employees of their agency. Respondeat superior only held an employer liable, not superior officers. Under other
theories of liability, however, superior officers could be sued; for example, if they participated in or ratified the
tortious actions of their subordinates (Wilkins v. Whitaker, 1983).

Box 6.1 Monell v. Department of Social Services of the City of New York (1978)

Female employees of the New York Department of Social Services filed a § 1983 claim asserting that a
policy requiring pregnant employees to take unpaid leaves of absence before they were medically
necessary violated their constitutional rights. The claim sought injunctive relief and back pay. The
department changed the policy prior to the decision and the lower court denied the request for back pay.
The Court of Appeals affirmed and the employees appealed to the United States Supreme Court.

The Court granted certiorari to assess the issue of whether a municipality or local government entity
could be held liable under § 1983 when the government’s policy or custom violated a person’s
constitutional right. The Court rejected the idea that a government entity could be held liable under
respondeat superior. The Court did state that a government entity could be held liable under § 1983 when
an alleged unconstitutional action is the result of a policy or custom. The Court also expanded the “every
person” language of § 1983 to include local governments.

This case is significant because local governments, along with their officers, can be held liable under §
1983 when their policy is the “moving force” that created a constitutional injury. Government entities are
no longer immune from § 1983 litigation. Monell provides that the officer, the city, the county, and the
government entity may be sued and held liable for monetary damages and injunctive and declaratory
relief. Policies and procedures should be in writing and direct officers’ actions within the purview of the
law.

The Monell decision established governmental liability for the behavior of criminal justice personnel when
they implement or execute promulgated or adopted policies or regulations, or for conduct that results from a
“custom,” even though the custom has not received approval through formal channels. To establish
governmental liability, the plaintiff must prove that a policy or custom existed, and that it was the moving

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force behind the officer’s violation of a person’s constitutional rights. The courts have not specifically defined
the type of involvement that creates supervisory liability, but they have suggested several potential theories in
which liability may be incurred under § 1983 against a supervisor, if the supervisor: (1) directly participated in
the action; (2) after learning of the violation through a report or complaint, failed to remedy a wrong; (3)
created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom
to continue; and (4) was grossly negligent in managing the subordinates who caused the unlawful condition or
event (del Carmen, 1991; Kappeler, 1997).

To prevail on a policy or custom issue, the plaintiff must actually establish that a policy existed and that
executing it or failing to execute it caused the constitutional violation. For example, in Jenkins v. Wood (1996)
liability did not attach against officials for alleged excessive use of force while search warrants for a residence
were being executed, in the absence of evidence of a municipal custom or policy of encouraging or tolerating
the use of excessive force while executing search warrants or the execution of illegal search warrants.
Likewise, the plaintiff’s claim in Graham v. District of Columbia (1992) that police officers used excessive force
against him pursuant to official policy was dismissed. The plaintiff failed to identify any specific policy or any
factual basis for a policy allowing excessive force. Conversely, in McConney v. City of Houston (1989) the
municipality was held liable and paid out $25,000 for an unconstitutional policy of detaining a diabetic arrestee
without a warrant for four hours even after determining he was not intoxicated.

The plaintiff must establish an affirmative causal link between a supervisor’s inaction and the harm suffered
(Rizzo v. Goode, 1976). In Wilson v. City of North Little Rock (1986) the court ruled that neither the chief nor
other officials were liable for prior threats and harassment against a business catering to African- Americans.
There was no evidence that linked the chief to actions of his officers, nor was there evidence that he knew of
such threats or harassment. Generally, the issue consists of whether an action or omission of the supervisor
caused an officer to violate the constitutional rights of another.

In Los Angeles County California v. Humphries (2010) the United States Supreme Court, with an eight- to-
zero decision (Justice Kagen recused), reaffirmed their former opinion in Monell regarding the issue of policy
and custom. The Humphries were charged with child abuse but were exonerated. By California law their
names were added to the sex offender Central Index and would remain on the index for 10 years. Neither the
statute nor the county had established any policy or procedure to challenge the validity of the index. The
Humphries filed a § 1983 lawsuit seeking damages, an injunction, and a declaration that State of California and
Los Angeles County officials had deprived them of their constitutional rights by failing to create a mechanism
through which they could contest inclusion in the index. The district court granted the defendants summary
judgment but the Ninth Circuit disagreed, ruling that the Fourteenth Amendment required the state to provide
those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court
also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county.
The county objected, claiming that as a municipal entity it was liable only if its “policy or custom” caused the
deprivation of a plaintiff’s federal right. The Ninth Circuit found that respondents could prevail against the
county on their claim for declaratory relief because Monell applied to prospective relief claims.

The county appealed the decision to the United States Supreme Court, claiming the statute was created by
legislature and was not county policy under Monell, and asserting that Monell addressed policy and custom
claims seeking monetary damages and not prospective relief. The Court examined the question of whether
Monell provided a prevailing plaintiff with all the available types of relief. The Court affirmed the Ninth
Circuit’s holding, ruling that the primary issue of their decision in Monell is that a governmental entity may be
held liable if their policy or custom was the driving force behind the constitutional deprivation. Further, the
Court held that, consistent with Monell, there is no bifurcation of relief that may be provided to a plaintiff. The
decision means a prevailing plaintiff may be awarded monetary and/or prospective relief when claiming the
governmental agency’s policy or custom created the constitutional deprivation in accordance with Monell.

Official Policymaker

The question of who is considered an “official” policymaker arises frequently. Not all supervisors fall into this
category. In Monell the Supreme Court stated that a policy can be created by those whose edicts or acts may
fairly be said to represent official policy. On two occasions the Court has ruled on the issue of who is a
policymaker for liability purposes. In Pembaur v. City of Cincinnati (1986) the Court held that public officials

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who have final policymaking authority can render an agency liable under § 1983. Acting at the direction of the
county prosecutor, sheriff’s deputies entered a medical clinic and arrested two individuals not named on the
arrest warrant. The owner of the clinic, a doctor, sued under § 1983 and the Court found the county liable
under Monell. This decision underscored Monell in that policy could be made by those who may fairly be said
to represent “official policy,” as the prosecutor in this case did.

In City of St. Louis v. Praprotnik (1988) the Supreme Court held that a government entity may be held liable
where authorized policymakers “approve a subordinate’s decision and the basis for it.” The Court further
added that the determination of who is the official policymaker for liability purposes is to be made by
examining state law. Generally, criminal justice administrators would fall within this category. In Marchese v.
Lucas (1985) the court found the sheriff to be the official agency policymaker and assessed $125,000 against him
for failing to train and discipline correctional officers when they beat a prisoner. In Ware v. Jackson County,
Missouri (1998) the jail director was determined to be the final policymaker as it related to the discipline of
detention officers, even though other county officials could review and overturn his decisions. There was no
systematic review process of his broad authority to discipline errant officers.

In determining who is the official policymaker in county law enforcement, the United States Supreme Court
ruled, however, in McMillian v. Monroe County, Alabama (1997) that an Alabama sheriff, in his law
enforcement capacity, was a state rather than a county official. In Alabama the governor and the attorney
general normally have authority over the sheriff’s office and not the county, because Monroe County had no
law enforcement authority. Thus, when there is no authority to make policy in the area of law enforcement, no
liability will attach.

Liability can be imposed against supervisors if they establish or enforce a policy or custom that causes a
constitutional deprivation. But liability generally cannot be based on a single incident of misconduct. In City of
Oklahoma City v. Tuttle (1985) the United States Supreme Court determined “that proof of a single incident of
unconstitutional activity is not sufficient to impose liability … unless it was caused by existing unconstitutional
municipal policy, which can be attributed to a municipal policy maker.” Generally, the plaintiff must establish
that the deprivation was a result of continuing agency policy and that the policy was the moving force behind
the deprivation.

Factors that may strengthen a plaintiff’s claim of agency practices of constitutional abuses include:

Frequency of the violation
The extent to which the practice was routinized by employees
The extent to which the practice was accepted by supervisors
The extent to which the action represented shared beliefs of employees
Retention of, failure to discipline, or failure to investigate the violating employee
Failure to prevent future violations (del Carmen & Kappeler, 1991).

Gaines v. Choctaw County Commissioners (2003) provides a prime example of how a sheriff’s policy was
actionable and how personal liability attached due to his participation in a constitutional violation. At the time
of the arrest the detainee was a patient in the hospital where he was being treated for acute renal failure and
pneumonia. Over the protests of hospital physicians, the sheriff personally removed the detainee from the
hospital and confined him at the jail. His condition deteriorated to the point where he was unable to walk or
feed himself. On several visits the family of the detainee found his condition worsening and eventually paid
other detainees to bathe and feed him. According to the family, detention officers refused to dispense
medications to the detainee because the sheriff’s policies did not require them to do so. The sheriff did
transport the detainee to a medical clinic and an attending physician recommended that he be admitted to a
hospital. The sheriff refused. The family contacted the state human resources agency, which intervened and
caused the detainee to be admitted to the hospital. Upon admission he was found to be malnourished and
dehydrated. He died two days later.

The estate of the detainee filed a lawsuit claiming that the sheriff and county denied the detainee medical
care while confined. The court found no liability for failing to train the officers or the sheriff. The court also
stated that the county did not have a duty to appoint a physician, but merely had the authority to do so; the
county had the authority to act and its failure to do so could be construed as a county policy. The court agreed
with the estate, holding that a Fourteenth Amendment violation was substantiated against the sheriff in his

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individual capacity, based upon his direct participation and policies which contributed to the death of the
detainee.

Further, the court’s decision in Murphy v. Franklin (2007) demonstrates how a sheriff’s policies and
procedures may create a constitutional violation of prisoners’ rights. A pretrial detainee brought a § 1983 claim
against the sheriff and jail administrator, alleging that he was subjected to punitive, degrading, and inhumane
treatment. The detainee alleged that he was shackled, hand to feet, to the toilet in an isolation cell, and, on
another occasion, shackled to a cot. The detainee asserted that he was shackled several times for no apparent
reason in a “lockdown” cell for almost 12 days in a position with his hands and feet connected and fastened to
the toilet and was not released to allow for urinating or defecating. He was not provided with clean clothing,
personal hygiene items, or bedding. The court held in favor of the detainee, ruling that the sheriff was
responsible for promulgating all policies and procedures in the county jail and the complaint was sufficiently
specific to state a valid § 1983 claim. According to the court, the collective action of these practices condoned
by the sheriff served no legitimate penological purpose other than to mistreat detainees in violation of their
constitutional rights.

Supervisors on the Scene or Commanding Officers Causing a Violation

Liability will attach for a supervisor on the scene who actually participates in or fails to prevent a violation
from occurring. In Masel v. Barrett (1989) a sergeant who was supervising six officers monitoring a political
demonstration was found liable when he stood by and watched the officers use excessive force on the
demonstrators, as well as beating one of them. The claim of supervisory liability is valid unless the failure to
intervene is proven to be negligent.

Liability can also attach even if the supervisor was not actually on the scene but directed or led the actions
of the officer and it caused a violation. In some cases in which a supervisor decides to act or not act, or selects a
tactic or type of equipment to use in an operation, it may increase the supervisor’s liability. In Morrison v.
Washington County (1983) a sheriff responsible for administering a jail was held liable because he was
consulted about the decision to arrest an intoxicated individual (who later died in the jail) for public
drunkenness. The sheriff had received information from officers in the field regarding the situation and, rather
than being transported to the hospital, the arrestee was brought to the jail.

The Supreme Court in Hudson v. McMillian (1992) found two correctional officers and a prison lieutenant
liable for the beating of a compliant, restrained prisoner. The two officers were escorting the prisoner to a
segregation cell and began hitting him in the face and kicking him in retaliation for an earlier argument. A
lieutenant on the scene observed the beating but merely cautioned the two officers “not to have too much fun.”
The supervisor was held liable for failing to properly intervene, supervise, and control the officers.

For liability to attach against a supervisor, a plaintiff must establish a “causal connection” between the
incident and the supervisor’s failure. Generally, one incident does not show a practice of failing to intervene
with officers. In Warner v. City of New Orleans (2004) Warner was arrested and claimed that the arresting
officer used excessive force in violation of the department’s policy on use of force and a policy regarding a
special task force that was designed to actively patrol certain sections of the city. Warner filed a § 1983 lawsuit
against the arresting officer for excessive force and against the chief of police for failing to supervise his
officers and promoting unconstitutional policies and procedures, although he was not on the scene at the time
of the arrest.

The district court found that the arresting officer did not use excessive force. The court ruled that the chief
was not personally liable because there was no evidence that he had a legal duty to prevent an officer’s
misdeeds or that his failure to prevent such conduct amounted to a violation of Warner’s constitutional rights.
Further, the court stated that the chief’s official duty was to make departmental policy and that the plaintiff
failed to show evidence of any “persistent” widespread practice of tolerating either false arrest or excessive
force, or any failure to properly supervise the officers in the department. The court noted that the chief was not
on the arrest scene at the time and was not involved in the incident. Thus the plaintiff failed to establish
evidence that would show that the chief’s alleged failures as a supervisor were connected to Warner’s alleged
rights violations. The court further stated that the chief had taken proactive measures to lead his department
and such measures were not “unwanted, wanton, or otherwise unconstitutional.”

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Theories of Supervisory Liability

Deliberate Indifference

Some ambiguity exists among federal courts regarding the level of culpability required for finding liability
with supervisors under § 1983. The courts have used the standard of gross negligence on occasion, but more
commonly use the standard of deliberate indifference.

This standard was established in Estelle v. Gamble (1976), when a prisoner sued correctional officials for
denial of medical treatment and improper medical treatment of a back injury he sustained while working on
the prison farm. The Court stated in Estelle that deliberate indifference involves a conscious intentional
decision or choice to inflict unnecessary and wanton pain on a prisoner. In Stokes v. Delcambre (1983) the
Court upheld an award of $250,000 against a sheriff, $105,000 in punitive damages against a correctional
officer, and $70,000 in compensatory damages against both defendants for ignoring repeated screams from a
prisoner who was being sexually assaulted by other prisoners. The Court determined that there was sufficient
evidence to support deliberate indifference to the safety of the prisoner and that the officers were wanton and
oppressive in their actions toward the prisoner.

The concept of deliberate indifference has been expanded over the years by the United States Supreme Court
in several correctional cases (City of Canton v. Harris, 1989; Wilson v. Seiter, 1991; Farmer v. Brennan, 1994).
The standard has not been specifically defined, but applied on a case- by- case basis. It generally means that
the actor disregarded a known or obvious consequence of his or her actions, consciously chose a course of
action with disregard for the harmful outcome, and disregarded a risk of harm of which he was aware. The
Court in Farmer stated that officials must possess knowledge that a substantial risk of harm existed by
evidence of their actions or failures to act.

Deliberate indifference may be demonstrated by either actual intent or reckless disregard. An administrator
acts recklessly by “disregarding” a substantial risk of danger that is either known to the administrator or that
would be apparent to a reasonable person in the administrator’s position. Mere negligence is insufficient to
support a § 1983 claim. Administrators are not liable if they can show that they responded reasonably to
known risks.

There are many forms of administrative actions that in their totality may create evidence of deliberate
indifference to constitutionally protected rights. Case law reveals seven general theories from which potential
administrative liability emerges: (1) negligent hiring; (2) negligent assignment; (3) negligent entrustment; (4)
failure to direct; (5) failure to supervise; (6) failure to discipline; and (7) failure to train. These theories are not
mutually exclusive, meaning that the plaintiff may allege several theories in the lawsuit against the
administrator. For example, it is not uncommon for the plaintiff in an excessive force claim against an officer
to assert a failure by the administrator in directing, supervising, and training the officer. A discussion of each
theory will follow, with the exception of failure to train, which will be addressed in Chapter 7.

Negligent Hiring

An emerging area of administrative liability is negligent hiring. Claims citing this deficiency generally assert
that the constitutional violation would not have occurred had the administrator properly performed a thorough
screening of the errant officer prior to hiring him or her. Liability stems from claims that the administrator
failed to conduct a complete background investigation of the employee prior to employment. Liability emerges
when an employee is unfit for appointment, such unfitness was known to the employer or should have been
known through a background check, and the employee’s act was foreseeable.

Hiring deficiencies led to liability in Jones v. Wittenburg (1977) and the sheriff was ordered by the court to
train and psychologically test the staff. In Brown v. Benton (1978) the court found that termination of an officer
was reasonable based on the results of background checks. Liability attached in Parker v. Williams (1988) when
evidence supported the plaintiff’s claim against a sheriff for promoting a policy or custom of not conducting
reasonable background checks on prospective employees. A former prisoner had been kidnapped and raped by
the chief jailer. In Benavides v. County of Wilson (1992) the court concluded that the sheriff had complied with
state requirements when hiring candidates for the position of correctional officer. Allegations of deliberate
indifference for improper screening of employees were not supported, even though the prisoner sustained an

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injury during his confinement.
There is potential for administrative liability in failing to test and evaluate officer candidates for

psychological deficiencies. The plaintiff in Bell v. City of Miami (1990) prevailed in a § 1983 action brought
against the municipality for failing to adequately screen police officer candidates prior to employment.
Allegations of an illegal entry and excessive force were upheld pursuant to a policy of failing to
psychologically test police officer candidates and a failure to review complaints. A widespread pattern and
practice of this failure was established. In Stokes v. Bullins (1988) the court held that a failure to use the
National Crime Information Center (NCIC) by a small- town police department to check the background of a
police officer candidate was not actionable. Even when the candidate had admitted to being arrested for a
minor crime and a further check would have revealed 15 prior arrests, some including offenses involving
violence, it failed to rise to a level of gross negligence. The candidate had lived in the community for many
years, had not posed a problem, and the admitted arrests were investigated.

The United States Supreme Court decided a case involving hiring practices in law enforcement for the first
time when it reviewed Board of Commissioners of Bryan County v. Brown (1997). This case (Box 6.2) involved
an excessive force claim made against a deputy after he engaged in a pursuit. The plaintiff alleged that the
sheriff was deliberately indifferent to the constitutional rights of citizens because he ignored an alleged violent
history of the deputy and, therefore, the hiring practices were unconstitutional. The deputy had one
misdemeanor arrest while in college, several years prior to employment, for an assault that occurred during a
fight. The plaintiff asserted that this incident, of which the sheriff was aware, should have placed the sheriff on
notice of the deputy’s proclivity toward violence.

The Court ruled in favor of the sheriff, stating that the hiring policy was not the moving force behind the
incident or the plaintiff’s injury. While the Court did state that one incident could trigger liability, they were
reluctant to impose liability for one isolated incident involving the hiring process. Emphasizing this reluctance,
the Court noted “every injury suffered at the hands of a municipal employee can be traced to a hiring decision
in the ‘but for’ sense: but for the hiring of the employee, the plaintiff would not have suffered the injury. A
court must carefully test the link between the policy maker’s inadequate decision and the particular injury
alleged.”

Box 6.2 Board of Commissioners of Bryan County v. Brown (1997)

Respondent Jill Brown and her husband drove from Texas into Oklahoma and, soon after crossing the
state line, noticed a police checkpoint. Mr Brown turned his vehicle around, and a deputy and a reserve
deputy pursued the Browns’ vehicle at high speeds. The Browns finally stopped and the deputies
approached their vehicle. The reserve deputy approached the passenger side and ordered Mrs Brown out.
She refused and he used an “arm bar,” pulling her from the vehicle and forcing her to the ground. Mrs
Brown sustained a knee injury and underwent corrective surgery. She sued under § 1983, claiming
excessive force and that the sheriff improperly hired the reserve deputy by ignoring his background of
misdemeanor charges for assault and battery, resisting arrest, and traffic charges. The district court found
in favor of Mrs Brown and the county appealed. The appellate court affirmed.

The United States Supreme Court granted certiorari to determine the issue of whether the county was
properly held liable for the respondent’s injuries based on the sheriff’s decision to hire. In a six- to- three
decision the Court found in favor of the sheriff’s decision to hire the reserve deputy. Mrs Brown asserted
the “but for” test, claiming that the sheriff ignored the deputy’s past and, but for a more thorough review,
he would not have hired him. The Court rejected that theory and stated that a court must test the link
between a policymaker’s decision and a particular injury. The plaintiff must prove a deliberate
indifference to the risk that a violation of the Constitution will follow that decision. Only when the
policymaker deliberately ignores “painfully obvious” information in the background of an applicant and
makes a decision to hire where a constitutional right has been violated can the plaintiff claim deliberate
indifference. In Oklahoma, a history of misdemeanors does not preclude one from being hired into law
enforcement.

This decision is important because it was the first time the Court applied the deliberate indifference
standard to hiring decisions. Applying the standard of deliberate indifference to hiring decisions creates a

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high barrier for a plaintiff to overcome. It is recommended that administrators develop and adhere to
adequate hiring procedures, continue to conduct thorough and complete background checks, and require
psychological examinations when making hiring decisions.

The Court further stated:

… a finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional
injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plain-tiff. The
connection between the background of the particular applicant and the particular constitutional injury must be strong.

The Supreme Court opined that the deputy’s background did not make his use of excessive force in making
the arrest a plainly obvious consequence of the hiring decision. “Only where adequate scrutiny of the
applicant’s background would lead a reasonable policy maker to conclude that the plainly obvious consequence
of the decision to hire the applicant would be the deprivation of a third party’s federally protected right can the
official’s failure to adequately scrutinize the applicant’s background constitute ‘deliberate indifference.’”

The implication of this decision is that administrators should ensure they conduct adequate background
investigations and use psychological examinations prior to hiring employees. There is no magic legal formula
for hiring prospective employees, but failing to institute adequate measures and take reasonable steps in
employee selection or ignoring information regarding the unfitness of a candidate can increase the risk of
liability. Hiring procedures must be instituted, state standards must be met, and the law must be followed. In
these cases the Supreme Court has created a high barrier for the plaintiff to overcome. The plaintiff must show
that the employee’s background made the specific constitutional violation a “painfully obvious consequence” of
his or her being hired.

In Morris v. Crawford County (2002) a claim that the sheriff failed to properly conduct an adequate hiring
investigation was dismissed by the court and the appellate court affirmed. A detainee confined in the jail
claimed that, during booking, an officer assaulted him after he refused to take a breath analyzer test. The
detainee was arrested and confined in jail for disorderly conduct and driving while intoxicated. The detainee
began banging on his cell and four officers responded. The detainee claimed that the officers dragged him out
of his cell, beat him, and one officer used a knee drop on him that severed his intestine. The detainee claimed
that this conduct violated his constitutional rights and that the sheriff knew of such violent tendencies at the
time he hired the officer but ignored them, and that such knowledge was the direct cause of his injury.

The appellate court held that the detainee failed to show a strong causal connection between the officer’s
background and the specific constitutional violation. The court noted that the only violent act in the officer’s
background was an incident in which he slapped a detainee, although protective orders were obtained against
the officer by his ex- wife and girlfriend. The court ruled that the sheriff and the county were not liable under
§ 1983 on the theory of deliberate indifference in the hiring of the officer.

Since the Supreme Court’s decision in Brown, a plaintiff must show a strong connection between the
background of the particular applicant and the specific violation alleged. Thus plaintiffs cannot prevail merely
because there was a probability that a poorly screened officer was highly likely to violate their rights. Rather,
they must show that the hired officer was highly likely to inflict the particular type of injury suffered by them.

In Hardmen v. Kerr County, Texas (2007) the county hired an officer who would have regular contact with
female prisoners. The officer raped a female prisoner and she filed a lawsuit claiming that the county failed to
conduct a thorough background check that would have resulted in a decision not to hire him. The court agreed
that Kerr County should have performed a better job in screening the officer. That the officer omitted answers
to key questions during his interview, such as whether he had previously been fired, should alone have been
cause for alarm. Also, had the county contacted the past employer, it is likely that they would have learned
that he was fired for making improper advances toward female students. Such knowledge may have prompted
the county to reconsider hiring him for a position that would place him in close proximity with female
prisoners on a regular basis. The court ruled, however, that even if the county was negligent in hiring the
officer it was insufficient to hold the county liable for any constitutional violation. There were no grounds to
find that the rape in question was a plainly obvious consequence of hiring him. Even if the county had
performed a thorough job of investigating the officer’s history there was absolutely no history of violence,
sexual or otherwise, to be found. While being fired from a prior employment was troubling, the court held that

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it requires an enormous leap to connect improper advances towards female students to the sexual assault at
issue in this case.

In Macon v. Shelby County Government Civil Service Merit Bd. (2009) Macon was employed as a detention
officer with the Shelby Sheriff’s Department. Macon was arrested for driving under the influence and speeding,
and lodged in a county jail in Arkansas. The Shelby Sheriff’s Department was informed of the arrest and
Detective Bartlett went to the jail and spoke to the arresting officer. The arresting officer informed Bartlett that
Macon stated he was a convicted felon and Bartlett was unaware of this conviction. Back at the Shelby
department an internal affairs investigation was performed on Macon. A review of Macon’s personnel file
revealed that a background check was performed before he was hired, which used the National Criminal
Information Center database, and no criminal records were found. Bartlett used the National Law Enforcement
Telecommunications System to further check Macon’s background and found a message stating, “Record No
Longer On File- Expunged.” Bartlett followed up and was informed that Macon had pleaded guilty to a felony
drug charge of manufacturing, possessing, and delivery of a controlled substance. The case had been sealed
several years before his employment at the sheriff’s department.

Bartlett examined Macon’s application form and found that he marked “no” to questions regarding past
arrests, convictions, or indictment on any criminal charges. Macon also left blank a question regarding whether
a charge was expunged. Bartlett interviewed Macon and asked him if his employment application was accurate
and he stated yes, except where the form asked about a prior conviction. Macon stated that he was told not to
answer that question by an unnamed person, that it would not show up, and that the department would most
probably not find out. Macon was charged with falsifying his employment application and violating
departmental rules and regulations. After a due process hearing Macon was terminated and he appealed to the
County Civil Service Merit Review Board. At the hearing Macon admitted that he had been convicted of a
felony charge prior to his employment and that he indeed answered “no” to the question regarding a felony
conviction. Macon maintained that he was not required to answer further questions on the application form as
the charge was expunged and that he did inform the training lieutenant during his academy training. The
board affirmed the termination and Macon filed a wrongful termination lawsuit. The district court upheld the
termination and Macon appealed the decision.

The appellant court rejected the appeal, upholding the termination. The court reasoned that the county’s
application form was not flawed in requiring applicants to answer questions regarding past charges,
convictions, and expungment of any convictions. The court held that the county’s policy and practices used for
conducting pre- employment background checks were reasonable and properly followed, and Macon’s own
conduct was the reason for the termination.

In Reeves v. Town of Cottageville (2014) an officer confronted a mentally ill man who was punching at him
and shot him. The man, who was the former mayor of the town, had complained to the police department
about the officer, who wrote traffic tickets totaling $600,000 from 2008 to 2011, which was more than any other
officer on the department. Attorneys for the estate argued at trial that the shooting was retaliatory. They also
sued the city for failing in their hiring process, and alleged that the city knowingly retained an unfit officer and
failed to supervise him. The officer testified that the shooting was in self- defense. During the trial it was
shown that the officer had been previously fired by several police departments for insubordination, dangerous
use of firearms, and other alleged policy and rule violations and unethical conduct. The jury returned a verdict
in favor of the estate and awarded $97.5 million, which included $7.5 million in compensatory damages and $90
million in punitive damages—$60 million against the town and $30 million against the officer. The court upheld
the jury award.

Hiring an applicant is one of the most important decisions administrators must make. Failing to conduct a
thorough and complete investigation can heighten the risk of civil liability in the future. Investigators need to
be trained in how to perform background investigations in order to ensure that the most qualified person is
hired. To ensure that background investigations are performed properly, consider the following
recommendations (Bushway, 2004):

Provide applicants with a personal history packet. This packet should be distributed to applicants
and should specify what forms need to be completed, by what date, and provide clear instructions. The
packet should require all education and employment information, including names, addresses, phone
numbers of supervisors, co- workers, and reference information.

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Obtain a notarized waiver. Ensure that the language of the waiver allows the investigator the ability
to access all aspects of the applicant’s past. Records can show the character of the applicant. Make
certain the waiver contains language that stipulates that negative information will remain confidential.
Include a release of liability of the investigatory agency and a disclaimer that all information and
materials are the property of the investigating agency.
Conduct an “initial interview” to go through the personal history statement of the applicant.
Open- ended questions should be used to elicit information necessary for the investigator to begin the
investigation. Creating a timeline can be helpful in cross-referencing information provided by the
applicant with information the investigator discovers during the investigation.
Follow up on reference information. In addition to reviewing reference comments, follow up by
making personal contacts with references and others who may have relevant information regarding
the applicant. Avoid relying solely on reference letters, but rather speak with neighbors, friends,
supervisors, past educators, military, etc.
Learn from the past. Avoid making the same mistakes that have occurred in other departments.
Departmental investigators should be trained in all aspects of performing background checks and keep
abreast of legal and liability issues affecting the hiring process in their state. Make certain to follow the
required state hiring standards as well as the departmental policy on hiring candidates. The use of
psychological assessments by trained and qualified individuals should be considered and used if
required by the state.

These components can assist in performing adequate hiring investigations. They will be very useful in
defending against claims that the hiring agency failed to conduct a less than thorough investigation or ignored
information that should have been reviewed when making the hiring decision.

Negligent Assignment

Negligent assignment is assigning an employee to a job without ascertaining his or her competence, or
retaining an employee on a job who is known to be incapable of performing the work. Examples include
assigning a reckless driver to transport prisoners or assigning an officer who has in the past demonstrated
mental or physical instabilities to a prison gun tower. The administrator has an affirmative duty not to assign a
subordinate to, or leave in, a position for which the subordinate is unfit. In Moon v. Winfield (1974) liability
attached for failure to place a police officer who was unfit for his regular assignment into a non- sensitive
position. The court held the supervisor liable because he had the authority to assign or suspend the officer, but
failed to do so. The supervisor had received five separate misconduct reports within a two- week period, as
well as a warning that the officer had been involved in a series of incidents that indicated mental instability.

In L.W. v. Grubbs (1992) an appellate court found supervisors liable when a prison nurse filed a claim for
improperly assigning her to work with young violent prisoners when the supervisors knew of their previous
violent histories. The court found that the supervisors created a dangerous situation when they assigned the
nurse to work by herself with these prisoners, and, when left alone with them, she was raped by one prisoner.

An example of assigning an unfit person to perform the duties of a police officer is provided in Grancid
Camilo-Robles v. Diaz-Pagan (1998). The plaintiff prevailed in an action against the superiors of a known
mentally impaired police officer, who was under psychological care, for failing to remove him from assigned
duties as a police officer. The plaintiff was arrested at gunpoint, slapped in the face, and held in a lockup by the
officer for three hours for parking in an unauthorized parking zone at the courthouse. The officer had a history
of 18 disciplinary infractions for bizarre behavior and brandishing his weapon at citizens. He was committed to
a psychiatric hospital after being diagnosed with schizophrenia and was released three months later. A police
psychiatrist recommended that the officer be terminated, and the agency director discharged him. The officer
appealed the decision and was reinstated. A psychiatrist reevaluated him, cleared him for full duty, and he
returned to duty fully armed. One day later he became engaged in a deadly force encounter and shot two
people, killing one of them. He was assigned to desk duty, psychologically evaluated again, and again returned
to regular duty by the department. He later threatened to kill a fellow officer, and the department terminated
him. The officer eventually pleaded guilty to voluntary manslaughter and was sentenced to a prison term. In
the subsequent civil action the director was found liable for having foreknowledge of the officer’s mental

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unfitness for duty and deliberate indifference to his condition by reassigning him to active duty, where a
known and foreseeable harm and death occurred. The court maintained that the director acquiesced in his
administrative capacity in assigning the officer duties for which he was clearly unfit. The court also held that
the director failed to take preventive or training measures to control the known violent tendencies of the
officer.

Frequently, in determining liability, the court will examine whether there exists a pattern of policy
violations by improperly assigning officers who previously heightened liability exposure for a department that
has been instrumental in violating the constitutional rights of citizens. In Hogan v. City of Easton (2006) the
plaintiff prevailed, resulting in substantial monetary settlements, because he was able to show the court that
officers used excessive force in his case and had a history of unjustifiably firing their weapons over 10 years.
The city operated an emergency response team (ERT) and assigned several officers to perform the related
duties. Prior to the standoff and shooting in the Hogan incident, several members had accumulated an
extensive record of excessive force claims and settlements which the court ruled amounted to deliberate
indifference in assigning officers to such responsibilities without supervisory remedy. The plaintiff researched
the personnel records of assigned ERT officers and discovered that six team members had accumulated a total
of 46 excessive force claims over a period of 10 years prior to the special assignment. After the Hogan shooting
the grand jury reported that the city had no code of conduct, written safety rules, or recognized manual of
policies, and the command structure failed to identify and remedy obvious safety deficiencies. The court held
that, based upon a pattern of an obvious disregard by the city to discipline officers for engaging in a pattern of
abuse of authority in using force and for ratifying a practice of assigning officers to a high-liability duty
without more rigorous selection criteria, the plaintiff established the existence of a policy and custom of
deliberate indifference to the use of excessive force by ERT members.

Administrators must pay careful attention to complaints and adverse reports against subordinates. They
must be investigated and properly documented. Further, administrators must generally be aware of the
strengths and weaknesses of subordinates and not assign them to perform tasks for which they lack skill or
competence.

Negligent Entrustment

Negligent entrustment involves the supervisor’s failure to properly supervise or control an employee’s custody,
use, or supervision of equipment or facilities entrusted to him or her (del Carmen, 1991). This theory of liability
is different from negligent assignment in that negligent entrustment goes beyond employee incompetence in
carrying out his or her duties to incompetence in the use of equipment entrusted to the employee. For example,
legal claims may emerge for failing to direct the proper use of an impact weapon in a disturbance situation that
later results in the serious injury or death of a prisoner. In Roberts v. Williams (1971) a county farm
superintendent had given an untrained trustee guard a shotgun and the task of guarding a work crew. The
supervisor was held liable because the shotgun went off, seriously wounding a prisoner.

In Slaken v. Porter (1984) a jury awarded a prisoner $32,000 when evidence supported a claim of excessive
force by correctional officers after they used high- pressure hoses, tear gas, and billy clubs to subdue him while
he was in a one- man cell. The officers and supervisory personnel were found to be deliberately indifferent to
the prisoner’s constitutional right to be free from a known risk of harm. Supervisors were found liable because
they should have been aware of the officers’ propensities and because they had the duty to ensure that
instruments of control were not misused. In Norris v. Detrick (1996) the court found that prison officials
properly administered two doses of chloracetaphenone (CN) gas when confronted by a prisoner with known
martial arts skills who refused to return to his cell after numerous orders to do so. The court noted that
whether the use of gas is constitutional depends on the totality of circumstances, including provocation, the
amount of gas used, and the purposes for which the gas was used. In Pereira-Gonzalez v. Lopez-Feliciano (1990)
police supervisors were held liable for failing to confiscate the duty weapon of an officer who had a history of
spouse abuse. The officer shot his wife after asking supervisors to take the weapon.

Negligent entrustment need not only include the misuse of equipment or weapons. Sanctioning or
condoning the misuse of physical force may also increase the risk of liability for superiors. A sheriff was liable
in Duckworth v. Whiesnant (1996) for tacitly condoning the use of excessive force. The sheriff condoned the
practice of kicking arrestees in the groin. In this case the deputy admitted to kicking the plaintiff in the groin

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while he was handcuffed. The court concluded that the county had “entrusted” this practice to officers and that
it amounted to deliberate indifference.

In some claims plaintiffs attempt to show that an administrator failed to equip department officers with the
proper equipment which, if accessible, may have resulted in a different outcome. This type of claim is generally
conjecture by a plaintiff and is asserted to demonstrate that an administrator deliberately made a decision that
resulted in violating a citizen’s constitutional rights. In Estate of Larsen v. Murr (2006) the plaintiff alleged that,
at the time of Larsen’s death, the city engaged in a custom of not arming officers with less- lethal weaponry.
An officer shot and killed a suspect whom he believed would have killed him if he had not fired his duty
weapon. In 2000 a city committee was studying whether to entrust officers with Tasers, less-lethal shotguns,
and pepper balls. These weapons were available to the department, but the decision to provide them to patrol
officers was not made until 2003. The court concluded that there was no deliberate decision made by the city
not to deploy less- lethal weapons prior to the incident. Assuming, however, that there was such a decision
that would support a custom or policy, the plaintiff presented no evidence that the officer would have acted
any differently had he been equipped with a less- lethal weapon. The court stated that it would not speculate
that if the officer had been issued a less- lethal weapon he would have chosen to use it under the
circumstances. The court concluded that the failure to issue less- lethal weapons did not cause the decedent’s
death.

The test of liability is that of deliberate indifference. The plaintiff must prove that the officer was
incompetent, inexperienced, or reckless, and that the supervisor knew or had reason to know of this. The
defense for the supervisor is that the use and custody of equipment were properly supervised, but, despite
adequate precautions, the incident still occurred.

Failure to Direct

A significant responsibility of any administrator is to develop and implement agency policies and procedures.
Policies and procedures put into operation the statutory requirements of criminal justice personnel. They
provide direction to officers in the proper performance of their duties. Policies guide officers in making
decisions about how to legitimately respond in different situations, particularly when a supervisor is not
immediately available.

Failing to direct refers to a failure to inform employees of the special requirements and limits of the job to be
performed. This is frequently interpreted as the failure of an administrator to promulgate policies and
procedures that direct personnel in the specific tasks of the job. In Ford v. Brier (1974) the court ruled that
failing to establish adequate policies gives rise to civil liability. Examples include the supervisor failing to
inform employees of the proper procedures for dispensing medication to prisoners or the limits of using force
to restore order during a fight.

In police work some of the more obvious examples of failing to develop policies and guidelines include
making arrests, using force, engaging in high- speed pursuits, performing searches on arrestees, and responding
to the mentally impaired. For example, in Garris v. Rowland (1982) liability existed for failure to establish a
policy of informing officers when an arrest warrant had been quashed. A practice of not informing officers of
the status of arrest warrants had developed.

In Rivas v. Freeman (1991) liability attached against a sheriff for failing to develop sufficient and appropriate
procedures and policies regarding identification of arrestees, warrantless searches, and computer checks for
information. Although the sheriff was not personally involved in the arrest of the plaintiff, the court found that
he formulated the policies and customs that resulted in the violations of the plaintiff’s constitutional rights. The
lack of established policies and procedures caused the plaintiff’s arrest, his unnecessary six- day incarceration,
and resulting humiliation. The evidence at trial supported a claim that the officers’ actions showed that the
sheriff failed to establish policies that would properly direct them in the performance of their duties.

In Women Prisoners v. District of Columbia (1994) the district court found prison officials liable for violating
the rights of female prisoners who were subjected to sexual harassment. The court held that the harassment
was the result of a government custom and practice and that officials failed to properly train employees in the
area of sexual harassment. A federal district court in Estep v. Dent (1996) granted injunctive relief to a prisoner
based on a claim that the prison policy that required him to cut his earlocks violated the Religious Freedom
Restoration Act. Requiring the prisoner to cut his earlocks would substantially violate the tenets of his Jewish

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faith. The court found that prison officials were deliberately indifferent and failed to establish that the policy
was the least restrictive means of furthering its interests in maintaining security.

A federal appellate court in Vineyard v. County of Murray (1993) found that the county was deliberately
indifferent to the rights of prisoners who had been beaten by deputies. The court stated that the county’s policy
of condoning such behavior was the moving force behind the violation of the prisoners’ constitutional rights.
In Valencia v. Wiggins (1993) liability was assessed against jail officials who acted outside the boundaries of
established policy. A prisoner was awarded $2,500 in damages and $27,000 in attorney’s fees when the jury
found that officers used excessive force against him in a jail disturbance. The officer struck a handcuffed, non-
resisting prisoner and placed him in a chokehold. The jury found that the force and chokehold violated the
jail’s policy and constituted malicious and sadistic harm.

The court rejected a motion of summary judgment filed by the City of Yakima, Washington, in Richards v.
Janis (2007). The Yakima Police Department adopted the use of the Taser and implemented a policy for its
usage. In part, the policy directed officers to: “use extra caution when considering its use on juveniles under 16
years of age; pregnant females, elderly subjects, handcuffed persons; and persons in elevated positions.” Officer
Cavin arrested Richards, who did not resist arrest and was handcuffed. Without provocation Officer Cavin
applied the Taser and Richards filed a lawsuit, claiming that the city’s Taser policy was unconstitutional and
that excessive force was used. The chief interpreted the department’s policy as allowing the Tasering of
subjects who are handcuffed as long as they are standing. Officer Cavin could not recall any policy restrictions
on applying the Taser on handcuffed individuals. The chief did not conduct an internal investigation of Officer
Cavin’s use of force but received numerous witness statements reporting that Richards did not resist arrest and
that the officer’s behavior was generally abhorrent. The court held that the plaintiff sufficiently presented
evidence showing that the city had a policy and custom serving as the moving force behind Officer Cavin’s
Taser usage. The plaintiff presented records of Officer Cavin’s Taser use in which the court determined that the
city acquiesced in enforcing the policy and concluded that the police department had a well-settled policy
serving as the moving force behind Officer Cavin’s excessive Taser use. With this information the court
concluded that the Yakima Police Department failed to conduct an internal investigation, which demonstrated
that it condoned and ratified the officer’s misconduct.

The best defensible position for administrators is to establish and maintain a current, comprehensive, and
constitutional written policy manual. Policies should be reviewed and revised annually in order to reflect the
current status of the law. The written policy should reflect not only the theory but also the actual practice of
the department. Agency procedures should mirror written job descriptions. Employees should be trained and
tested in their comprehension of policy content. Each employee should have an individual current copy of the
policy manual and it should be inspected periodically. Supervisors must be familiar with and enforce all
policies.

The importance of implementing and enforcing departmental policies was further emphasized in the Court’s
decision in City of Ontario, California v. Quon (2010). The city signed a contract with a private company for 20
pagers specifically to be used by the emergency response team (ERT), which included 20 officers. The city
limited the number of messages for each officer on a monthly basis and informed them that the pagers would
be treated like their work computer. The city provided each member of the ERT with a policy on the use of the
pager, addressed the policy with all team members, informed each officer that there was no expectation of
privacy in using the pager, and that the messages on the pager would be monitored periodically. Each officer
signed documents acknowledging his or her comprehension of the policy. Sergeant Quon exceeded the number
of authorized messages and a lieutenant counseled him about the overages. Sergeant Quon agreed to pay for
the overages but after two months failed to do so. The chief of police instructed internal affairs to investigate
further. They performed a search of the pager and found that Sergeant Quon had made 456 messages, of which
57 were not work related and many involved sexually explicit content. Quon was later disciplined.

Sergeant Quon filed a § 1983 lawsuit claiming that the chief ordered a search of his pager, which violated his
Fourth Amendment rights. The district court ruled that Quon had an expectation to privacy but determined
that the search of the pager was reasonable. Quon appealed to the Ninth Circuit Appellate Court and they
reversed, holding that the search was unreasonable.

The City of Ontario appealed the decision to the United States Supreme Court and the Court granted
certiorari to examine privacy expectations in communications made by employees on electronic equipment

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provided by an employer. The Court addressed three questions: did Quon have a privacy expectation; did the
review of the pager messages constitute a search; and do searches of electronic equipment have the same
protection as physical property at the workplace. The Court reviewed the background of an expectation of
privacy and reasonable searches under the Fourth Amendment. The Court, however, made a distinction about
searches of employer property assigned to employees at the workplace. The Court ruled employees have a right
to privacy but there are exceptions. At the workplace, “special needs” in regard to work-related misconduct is a
justified exception and a warrantless search is allowed. In this case there were justifiable grounds for
conducting the search of the pager. The city had a legitimate interest in ensuring that employees were not
being forced to pay out of their own pockets for work- related expenses, or on the other hand that the city was
not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and
expedient way to determine whether Quon’s overages were the result of work-related messaging or personal
use. The review was also not “excessively intrusive.” The Court reasoned that Quon as a law enforcement
officer would or should have known that his actions were likely to come under legal scrutiny, and that this
might entail an analysis of his on- the- job communications. Under the circumstances, a reasonable employee
would be aware that sound management principles might require the audit of messages to determine whether
the pager was being appropriately used. Quon was not given any assurances of an expectation of privacy
regarding the search of the pager. Indeed, the police department provided the officers with a policy on the use
of the pager, informed them to treat it as a work computer, to expect periodic monitoring of the pager, and
each officer signed a supportive policy document. The Court determined that the search was reasonable in its
scope, was not intrusive, and did not violate Quon’s Fourth Amendment rights against an unreasonable search.

Because the search was motivated by a legitimate work- related purpose, and because it was not excessive in
scope, the search was reasonable. The employer had a legitimate reason for the search and the search was not
excessively intrusive in light of that justification— the Court also concluded that the search would be “regarded
as reasonable and normal in the private-employer context.” The Court reversed the Ninth Circuit Appellate
Court’s decision.

Ostensibly the Court’s ruling gave deference to workplace management who have a responsibility to ensure
employees adhere to workplace policies. The decision serves to remind administrators to ensure that policies
are implemented that address all electronic equipment, its work- related usage, and articulate that the
equipment will be monitored periodically to maintain integrity of the equipment. Administrators are
encouraged to address the policy with all employees through training, provide a copy to each employee, and
require each employee to sign that they have read and received training in the policy. Finally, administrators
and supervisors should work to enforce the policy in order to maintain accountability by all employees.

In Dean v. County of Gage (2015) a man was convicted of rape and murder, with the evidence against him
including testimony and confessions from his five co- defendants, all of whom pleaded guilty to various
charges in connection with the crime. After 19 years, based on DNA testing, all the convictions were pardoned
or overturned. The plaintiffs sued the county and the officers involved in the case, and in earlier proceedings it
was determined that their “evidence was sufficient to support the claims that their rights to fair criminal
proceedings were violated as the result of a reckless investigation and defendants’ manufacturing of false
evidence”; that the evidence was sufficient to support a conspiracy claim, but was insufficient to support a
coercion claim; that members of the sheriff’s office were not protected by qualified immunity; and that the
county attorney was protected by absolute immunity. A federal appeals court affirmed the denial of qualified
immunity to the officers and ruled that claims against the county should not have been rejected, since the
plaintiffs produced proof of questionable procedures and “hasty condemnation” by officers in charge of
policymaking. There was sufficient evidence that the sheriff was a final policymaker for the county, and
created its applicable policies, supervised officers, and encouraged, directed, and endorsed their activities.

In Daniel v. Cook County (2016) the Seventh Circuit held that the sheriff can be directly liable for a
detainee’s injury while confined. The court reasoned that if the sheriff or a prison official, including a person
with final policymaking power, is aware of a systemic lapse in enforcement of a policy critical to ensuring
inmate safety, his or her failure to enforce the policy could violate the Eighth Amendment. Additionally, if a
supervisor designed or is aware of the facility’s deliberately indifferent policy that caused a constitutional
injury, then individual liability might flow from that act. The Department of Justice conducted an investigation

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into the sheriff’s department’s health care system. Many detainees had complained about the inadequacies of
providing medical care to detainees. The findings of the investigation, along with the Memo of Agreement
detailing the jail’s progress, provided evidence that the sheriff was knowledgeable of the systemic deficiencies
in the jail’s health care. The detainee’s evidence, in its totality, was sufficient to allow a jury to find that these
problems persisted when the detainee received inadequate care and that the sheriff did not respond reasonably
to them.

Failure to Supervise Subordinates

A fundamental responsibility of criminal justice supervisors is to provide adequate supervision and control
over the activities of subordinates. Allegations of failing to supervise employees involve abdication of the
responsibility to oversee employee activities. Failing to supervise employees properly can result in litigation for
failing to know about employee behavior. Examples include tolerating a pattern of physical abuse of arrestees
or prisoners, racial discrimination, and pervasive deprivation of individual rights and privileges.

Permitting unlawful activities in an agency may constitute deliberate indifference, giving rise to liability.
The key issue relates to a policy or custom of inadequate supervision of employees. The plaintiff must show
that the agency failed to supervise its personnel or that such failures resulted in deliberate indifference. The
usual standard is whether the supervisor knew of a pattern of behavior but failed to act on it. The question
becomes, “What constitutes knowledge of a pattern of behavior among employees?” Many courts have
established that actual knowledge is required, while other courts state that knowledge can be inferred if a
history of violations is established and the administrator had direct and close supervisory control over the
employee committing the violation. In Johnson v. Cannon (1996) the court found a sheriff liable for failure to
provide proper supervision and control of a deputy. Over a period of several months a deputy had stopped
female motorists for traffic violations and forced them to have sexual intercourse with him. The failure to
properly supervise the deputy rose to a level of deliberate indifference.

Courts hold that a supervisor must be “causally linked” to the pattern of constitutional violations by
showing knowledge of it, and that this failure to act amounts to approval and thus tacit encouragement for the
pattern to continue. In Shaw v. Stroud (1994) the estate of the deceased failed to connect an alleged failure to
supervise with a North Carolina state trooper’s history of excessive force claims in a situation in which he used
deadly force. The trooper stopped a motorist in front of his house and attempted to arrest him for driving while
impaired. During the arrest a struggle ensued. The driver took the trooper’s metal flashlight and struck him on
the head, then came at the trooper again and struck him a second time. On a third attempt the trooper fired his
duty weapon several times, killing the driver.

The trooper, his sergeant at the time, and a former sergeant were sued by the family. The former sergeant
had supervised the trooper for approximately five years but had transferred 18 months prior to the shooting.
The trooper had accumulated more than 25 complaints from citizens alleging excessive force. A district court
judge had also voiced concern to the trooper’s supervisor regarding the number of “injured” defendants who
appeared in his courtroom after being arrested by this trooper. The Fourth Circuit Court of Appeals dismissed
the claim of inadequate supervision against the current supervisor because he had responded to complaints by
sending other supervisors to monitor court cases and by riding with the trooper to evaluate his conduct during
arrests. The court, however, remanded the case to the lower court with regard to the first supervisor’s inaction,
because the court held that he failed to investigate the many complaints lodged against the trooper,
constituting a failure to supervise. The jury in the lower court found that the trooper responded correctly by
shooting the motorist. Therefore, because the jury found in favor of the trooper, the supervisor could not be
held liable.

The severity of an employee’s constitutional violation must be sufficient in order to justify a verdict of
failing to properly supervise an employee. In Atchinson v. District of Columbia (1996) a police officer
confronted a man carrying a machete on the street. The officer shouted “Freeze!” once and did not give another
warning before using deadly force. The appellate court ruled that even a single incident of such use of force
was adequate to support a complaint of inadequate supervision and training of police in the use of force.
Conversely, in Singleton v. McDougall (1996) a sheriff was not liable for alleged inadequate supervision when
an officer used deadly force in an arrest situation. The evidence showed that there had been “numerous”
(although the number was not specified) incidents in which deputies had previously used deadly force. The

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plaintiff’s contention was that such incidents proved that the sheriff failed to supervise his subordinates in the
proper use of firearms and thus was deliberately indifferent to the rights of the citizenry. Despite previous
lawsuits alleging the use of excessive force or wrongful use of deadly force by deputies, there had been no
single case in which the courts had ruled that department personnel had violated a clearly established right in
this area. The court concluded that the sheriff was entitled to qualified immunity, as the evidence failed to
show that a reasonable person in the sheriff’s position would know that the unresolved lawsuits established a
right requiring corrective action.

In Williams v. White (1990) the Eighth Circuit Court of Appeals found that a prison superintendent may be
liable for operating a prison with unsanitary and inhumane conditions and may be directly liable when he fails
to train, supervise, or control his subordinates. In Treadwell v. Murray (1995) a prisoner asserted that
correctional officials failed to oversee officers and medical personnel when the officials deprived him of a safe
rehabilitative environment and made an inappropriate initial medical classification. The prisoner claimed that
the physician’s improper classification prevented him from being eligible for “different types of incarceration,”
such as halfway houses, work- release programs, or road camps. According to the prisoner, the director of
corrections abdicated his supervisory responsibility by failing to oversee the actions of his employees, which
ultimately resulted in a constitutional deprivation. The court found that the prisoner failed to state a claim of
deliberate indifference under § 1983 based on supervisory liability. The court further concluded that the
prisoner failed to substantiate any wanton, obdu-rate, or offensive acts by the director of corrections in his
supervisory capacity, nor could he point to any single incident, or isolated incident, in which the director
created any pervasive risk of harm that deprived the prisoner of a constitutionally protected right.

In Giroux v. Sherman (1992) a prisoner was awarded $36,000 in punitive damages, claiming on four
occasions that at least eight correctional officers beat and tormented him without provocation. Due to the
beatings he aggravated an old injury, which required hospitalization. While in the hospital he was also beaten
and sustained kidney and throat injuries. Supervisory liability was also found when the court stated that
supervisors failed to identify and correct their behavior.

In Campbell v. City of New York (2004) the court found that supervisors of an arresting officer were liable for
failing to supervise and failing to discipline officer misconduct. Campbell requested police assistance when he
was assaulted by his ex- wife’s son. Officer Buckley responded but did not arrest the son. The police received a
second call from Campbell six months later asking for assistance in enforcing a restraining order that allowed
him to visit his children, who were in his ex- wife’s custody. Officer Buckley responded and learned that
Campbell’s ex- wife had a protection order against him, and Campbell was arrested. Campbell served time in
jail but the charges were later dropped. Campbell filed a citizen complaint for false arrest. Detectives
investigated the complaint and informed Campbell that his ex- wife had called the NYPD reporting that he had
threatened to kill her. Campbell’s ex- wife signed an affidavit stating that Campbell made threats to her and he
was arrested a second time. These charges were later dropped and Campbell filed a lawsuit claiming that
supervisors of the NYPD failed to adequately supervise and discipline the officers involved in the case.

The court ruled in favor of Campbell, holding that the officers caused a formation of a custom, practice, and
policy that was detrimental to Campbell’s rights. The court found that supervisors failed to adequately
supervise the involved officers and allowed a practice of officer misconduct. The court agreed with Campbell’s
claim that failing to supervise officers ostensibly encouraged other officers to retaliate against citizens who
filed complaints. The court, however, dismissed the false arrest claim filed regarding the first arrest as there
was a lawful protection order against him.

This decision not only questions the officer’s decision- making ability, but questions a department’s level of
supervision with their officers. Supervisors can insulate themselves from allegations for failure to supervise by
ensuring that officers follow through with all investigations in a timely manner and reminding investigators of
the importance of remaining impartial in their review of citizen complaints. In addition, supervisors must show
that they have taken proactive measures to properly supervise their officers when misconduct occurs. For
example, supervisors were held liable in Neris v. Vivoni (2003) when it was shown that the supervisors had
actual knowledge of employees’ unconstitutional conduct and took no steps to remedy the situation. Failure to
take remedial intervention measures in the face of such knowledge rose to a level of supervisory deliberate
indifference.

In Estate of Brutsche v. City of Federal Way (2007) the plaintiff brought claims against several municipalities

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for failure to supervise emergency response team (ERT) members and for developing unconstitutional policies.
Several cities joined in a mutual aid agreement to form an ERT and an executive board was responsible for
formulating the policies of the team. The ERT served a “high- risk” warrant on Brutsche’s property based on a
number of factors, one of which was a high risk of violence by Brutsche. During the execution of the warrant
Brutsche was injured and he sued the municipalities, claiming that the policies and customs of the ERT caused
his injuries and that the supervisors of team members failed to properly supervise officers, ratifying their
unconstitutional use of excessive force. The municipalities filed a motion for summary judgment.

The court noted that the municipalities were persons within the meaning of § 1983 and were subject to a
lawsuit. Brutsche argued that the officers of the team followed an unconstitutional policy of the departments,
which resulted in a violation of his Fourth Amendment rights. He argued that policies of the team to execute
high- risk warrants caused the team to use unreasonable force. He also argued that such policies, when
executed and resulting in excessive force and an injury, also supported a claim of failure to supervise team
members in the proper techniques that would minimize the use of force. The court granted summary judgment
because Brutsche could not provide any supporting evidence that showed the team’s execution of the warrant
resulted in a sustainable injury. The court found that the policy used to classify warrants as high risk could not
be considered the cause of Brutsche’s injuries. The court also noted that officers had been directed personally
by supervisors in the execution of the warrant and the techniques used in implementing the policy in the field,
and found no evidence that officers were improperly supervised in the performance of their duties.

It is imperative that administrators not shut their eyes to, or tolerate, improper employee conduct.
Performance should be evaluated periodically, in addition to informal appraisals of employee conduct to
encourage proper behavior. Supervisors should review employee performance firsthand and review all incident
reports. All complaints of improper conduct by officers must be investigated and appropriate discipline should
be provided. Remedial correction of unsatisfactory employee performance should be documented, and
employees who chronically fall below the accepted standard should be put on notice that employment is based
on adherence to policy and proper conduct in the workplace. This strategy can assist in reducing potential
supervisory liability.

The issue of what level of supervisory behavior would lead to liability was further examined in Ashcroft v.
Iqbal (2009). After the attack on the World Trade Center in New York City on September 11, 2001, Iqbal was
held in a detention center as a “person of interest” along with 183 others. Iqbal was placed in a segregation
housing unit and released from his cell for one hour daily. He pleaded guilty to fraud against the United States
and after serving his sentence was transported back to Pakistan. He subsequently filed a federal torts claim
(Bivens action) against Robert Mueller, the Director of the Federal Bureau of Investigation, and John Ashcroft,
United States Attorney General, who supervised Director Mueller. Iqbal asserted that Mueller implemented an
unconstitutional policy developed by Ashcroft, which included harsh treatment in the segregation unit that
violated his religious rights as a Muslim. The complaint asserted that petitioners designated the respondent a
person of high interest because of his race, religion, or national origin, in contravention of the First and Fifth
Amendments to the Constitution. The complaint alleged that “the [FBI], under the direction of Defendant
Mueller, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of
September 11.” It further alleged that “[t]he policy of holding post- September- 11th detainees in highly
restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by defendants Ashcroft
and Mueller in discussions in the weeks after September 11, 2001.” Lastly, the complaint alleged that petitioners
“each knew of, condoned, and willfully and maliciously agreed to subject” the respondent to harsh conditions
of confinement “as a matter of policy.”

Ashcroft’s motion for summary judgment was rejected by the lower court and the Second Circuit Appellate
Court since both courts held that Iqbal’s complaint was adequate to allege petitioners’ personal involvement in
discriminatory decisions, which, if true, violated clearly established constitutional law. The Court granted
certiorari to examine the issue of whether a supervisor may be held liable when an employee implements
policy that allegedly discriminates against the plaintiff in violation of his constitutional rights.

The Court ruled that because vicarious liability is inapplicable to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971) and § 1983 suits (see Monell v. New York City Dept. of Social Servs., 1978), the
plaintiff must plead that each government- official defendant, through his own individual actions, has violated
the Constitution. Purposeful discrimination requires more than “intent as volition or intent as awareness of

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consequences”; it involves a decision-maker undertaking a course of action “because of,” not merely “in spite
of,” the action’s adverse effects upon an identifiable group. The Court ruled that Iqbal must plead sufficient
factual matter to show that petitioners adopted and implemented the detention policies at issue not for a
neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national
origin.

Several of his allegations— that petitioners agreed to subject him to harsh conditions as a matter of policy,
solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that
policy’s “principal architect”; and that Mueller was “instrumental” in its adoption and execution— are
conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller,
arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy,
do not plausibly suggest that they purposefully discriminated on prohibited grounds. Given that the September
11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law
enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a
disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs
nor Muslims. Even if the complaint’s well- pleaded facts gave rise to a plausible inference that Iqbal’s arrest
was the result of unconstitutional discrimination, that inference alone would not entitle him to relief. Iqbal’s
claims against Ashcroft rested solely on their ostensible policy of holding detainees categorized as “of high
interest,” but the complaint does not contain facts plausibly showing that their policy was based on
discriminatory factors.

Iqbal argued that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and
acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among
detainees.” This meant that Iqbal believed that a supervisor’s mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor violating the Constitution. The Court, however, rejected the
argument. The Court held that in a § 1983 suit or a Bivens action— where masters do not answer for the torts
of their servants— the term “supervisory liability” is a misnomer. Absent vicarious liability, each government
official, his or her title notwithstanding, is liable only for his or her own misconduct. In the context of
determining whether there is a violation of clearly established right to overcome qualified immunity, purpose
rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional
discrimination; the same holds true for an official charged with violations arising from his or her
superintendent responsibilities.

Iqbal’s claims against Ashcroft rested solely on their ostensible “policy of holding post-September- 11th
detainees” in the ADMAX SHU once they were categorized as “of high interest.” To prevail on that theory, the
complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying
post- September- 11 detainees as “of high interest” because of their race, religion, or national origin. The Court
concluded that the complaint failed to support the allegation.

The application of the majority’s decision to supervisory liability in local law enforcement cases is best
evidenced by the Court noting the clearly established precedent that supervisors cannot be held liable under §
1983 or Bivens based upon respondeat superior liability; in other words, simply because they supervise the
person who committed the wrongful act. The Court went on to assert: “because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plain-tiff must plead that each Government- official defendant,
through the official’s own individual actions, has violated the Constitution. The factors necessary to establish a
Bivens [or § 1983] violation [against the supervisor] will vary depending on the constitutional provision at
issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our
decisions make clear that the plaintiff must plead and prove that the defendant [supervisor] acted with a
discriminatory purpose.”

The Court held: “In the context of determining whether there is a violation of clearly established right to
overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the
subordinate for unconstitutional discrimination; the same holds true for an official charged with violations
arising from his or her superintendent responsibilities.”

In cases involving allegations of discrimination, such as racial profiling allegations, it will not be enough for
a plaintiff to show that a supervisor knew of and acquiesced in the racial profiling, but instead a plaintiff will
have to show that the supervisor had a purpose to discriminate. A plaintiff must show plausible facts showing

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a policy was based on discrimination factors.
The case will likely have an impact where there is some state of mind requirement such as use of force in

jails and prisons. It may not in those cases be enough to show that the supervisor knew of and acquiesced to
the force; a plaintiff may be required to prove that the supervisor had the requisite malicious and sadistic
intention related to the use of force (Ryan, 2009).

Over the years the issue has emerged as to how a “supervisor” is defined. In Vance v. Ball State University, et
al. (2013) the United States Supreme Court, in a six- to- three decision, defined a supervisor as one who is
empowered by the employer to take tangible employment actions of organizational employees. Vance, an
African- American woman, sued Ball State University alleging that fellow employees created a racially hostile
environment in violation of Title VII. Vance argued that harassment by Davis, her co- worker, lasted for some
time and that Davis’s supervisors failed to correct the situation. The Seventh Circuit affirmed the lower court’s
summary judgment on behalf of BSU ruling that Davis did not qualify as Vance’s supervisor.

The Court affirmed the appellate court’s decision. The Court ruled that BSU had submitted a broad job
description of Davis and it did not include taking authority of other employees for the expressed purpose of
directing Vance’s or other employees’ day- to- day activities. The fact that Davis may share a “prep list”
prepared by the general manager did not equate to the status of a supervisor, according to the Court. The Court
affirmed the Seventh Circuit’s decision and concluded that Davis was not empowered to take “tangible
employment actions” (hiring, promoting, scheduling assignments, the employee reports to the supervisor for
day- to- day tasks, disciplining, and terminating).

In Franklin v. Curry (2013) a jail correctional officer sexually abused a female pretrial detainee. During
booking Officer Gay placed his hands on Franklin’s genitals and she told him to stop. Officer Gay stated that
there was nothing she could do about it. Later in the evening Officer Gay entered Franklin’s cell and forced his
penis into her mouth. Later Franklin informed her boyfriend and her parole officer, who informed the chief
deputy of the jail. He spoke with Franklin and the Alabama Bureau of Investigation took a statement from
Franklin. During the investigation the bureau discovered that Gay had sexually abused other female detainees.
Gay resigned from the sheriff’s department. Franklin filed a § 1983 claim alleging sexual abuse by Gay, and
claims against the chief deputy and that the sheriff failed to protect her from Gay, and failed to supervise Gay,
amounting to deliberate indifference.

The lower court awarded summary judgment to Franklin and the sheriff appealed. The court awarded
qualified immunity to the sheriff and held that the lower court erred in applying deliberate indifference. The
court ruled that neither Gay’s supervisor nor the sheriff had actual knowledge of the serious harm Gay
presented and that Franklin did not present any evidence that jail supervisors actually knew that Gay was
sexually abusing female detainees. Second, Franklin argued that Sheriff Curry “failed to promulgate,” to adopt,
to implement, or to enforce policies, rules, or regulations to safeguard female detainees, but she failed to
describe any of the policies that were in place, the sort of policies that should have been in place, or how those
policies could have prevented Officer Gay’s abuse. Similarly, Franklin alleged the names and titles of the other
supervisors but alleged nothing about the significance of their titles, their individual roles in the jail, their
personal interactions or familiarity with Gay, their length of service, their management policies, or any other
characteristics that would bear on whether they knew about but were deliberately indifferent to Gay’s conduct
and the risk he posed. The court concluded that not all of the defendants were ever in the jail, much less that
each of their individual actions constituted deliberate indifference to the risk that Gay would abuse Franklin.

In Watson v. City of Marysville (2013), with claims of supervisory liability against the chief and the assistant
police chief, the plaintiff was required to show, at a minimum, that the supervisors at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers. The
court explained that to find supervisory liability the plain-tiff first had to prove his claim of municipal liability
against the city, showing that its failure to train officers on the proper use of Tasers was deliberate
indifference. Absent a showing of an underlying constitutional violation, there was no supervisory liability.
Thus a prerequisite to both of these claims is that a constitutional violation has occurred. The court also found
that because Watson could not show either a clearly established right or a violation thereof, his derivative
claims for municipal liability and supervisory liability were also properly dismissed.

In District of Columbia, et al. v. Wesby, et al. (2018) officers responded to a party at a residence based on a
call from the complex’s owner. On instruction by the responding sergeant, attendees at the party were arrested

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by five officers as they had entered the premises unlawfully; the host had not finalized the rental agreement to
live there and had no right to hold the party. The partygoers informed the officers that they had been given
permission to be there by the owner of the residence, although she was not there. At the police station the
lieutenant changed the charges to disorderly conduct, based on discussions with the D.C. Attorney General’s
office. The supervising sergeant complied but disagreed, as he and the officers did not observe any disorderly
conduct by the partygoers. The attendees filed a civil action claiming false arrest and a claim of failing to
supervise against the supervising sergeant. The District of Columbia Court of Appeals affirmed the denial of
summary judgment for the officers, holding that they did not have probable cause to arrest the partygoers for
unlawful entry or for disorderly conduct. The court further ruled that the undisputed facts in this case
demonstrated that the sergeant directed his subordinates to make an arrest that he should have known was
unsupported by probable cause. According to the court, to establish a cause of action for failure to supervise, a
plaintiff must show that the employer knew or should have known its employee behaved in a dangerous or
otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge,
failed to adequately supervise the employee. The court concluded that it was sufficient to entitle the plaintiffs
to judgment as a matter of law on their claim of failure to supervise.

The District of Columbia police officers appealed the decision to the United States Supreme Court. The
Court granted certiorari to resolve two questions: whether the officers had probable cause to arrest the party
goers and whether the officers were entitled qualified immunity. The Court ruled that the appellate court erred
on the issue of probable cause and the issue of qualified immunity. First, the Court held that the officers had
probable cause. The Court determined that probable cause is not a high bar to hurdle and it is determined by
assessing the combination of all the known facts within the totality of circumstances. As the Court noted,
probable cause turns on the assessment of probabilities in a particular situation and cannot be reduced to a neat
set of legal rules. Pointing to the factors known to the officers during the arrest including: the condition of the
house, limited signs of anyone living in the house, a lack of furniture in the house, the conduct of the
partygoers, a group of men with one naked woman, a makeshift strip club, the partygoer’s reaction to the
police upon contact, and their responses to the officers questions, collectively taken together were sufficient for
a reasonable officer to believe that the partygoers knew they did not have permission to be in the house and
supported probable cause. The Court reversed the appellate court’s holding and awarded the officers summary
judgment.

Second, the Court awarded qualified immunity to the officers as the law had not been clearly established at
the time. The Court ruled that at the time the law was not sufficiently clear that a reasonable officer would
understand that what he or she was doing was unlawful. The Court stated that the contours of clearly
established law must be clear to a reasonable officer that his conduct was unlawful in the situation confronted.
Further, the Court reiterated that the courts must not define clearly established law at a high level of
generality, as this avoids answering the question whether the officer’s conduct was reasonable. Based on the
facts encountered by the officers in this situation, the Court concluded that they were entitled to qualified
immunity as a reasonable officer would conclude that probable cause existed. Moreover, since the officers were
entitled to qualified immunity, any claim against a failure to supervise the officers by the sergeant or a claim
that the sergeant improperly directed them in the course of the arrest, also failed.

Negligent Failure to Discipline/Negligent Retention

Failure to discipline involves the administrator’s failure to investigate complaints about employees and take
appropriate action as warranted. Allegations can also result from the supervisor failing to take action against
an employee in the form of suspension, transfer, or termination when the employee has demonstrated
unsuitability for the job. Claims of retaining errant officers after they have repeatedly engaged in misconduct
can also result in supervisory liability.

The supervisor has an affirmative duty to take all necessary and proper steps to discipline or terminate a
subordinate who is obviously unfit for employment. Unfitness may be determined either from acts of prior
gross misconduct or from a series of prior acts of lesser misconduct that indicate a pattern (del Carmen, 1991).
Courts have imposed liability for inaction when a supervisor had actual knowledge that the employee had
previously engaged in unlawful conduct and did nothing to correct the behavior. In Hogan v. Franco (1995) the
chief was found liable for failing to discipline, supervise, and train errant officers in the proper use of force. In

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this case the plaintiff sustained major nerve damage to his arm, wrist, and back from the improper use of
handcuffs and misapplication of an impact weapon (a baton) by the arresting officer. Evidence was confirmed
that the chief knew of a history of officers physically abusing prisoners or mis-handling arrest situations. Trial
testimony confirmed more than 10 successful lawsuits won by plaintiffs for similar complaints made against
the department. The chief was aware of at least one officer who had a propensity for violence and beating
arrestees. The chief was held liable for tolerating the failure to investigate, discipline, or correct violations,
which suggested the adoption of a policy supporting such violations. Such persistent failure to discipline
amounted to an inference of an unlawful policy of ratification of unconstitutional conduct within the meaning
of Monell and rose to a level of deliberate indifference. The plaintiff was awarded $200,000 in compensatory
damages against the chief and the officer.

The Hogan case illustrates how the courts make a connection between official policy and a failure to
discipline in cases of known officer misconduct. In essence, failing to identify officer misconduct or tolerating
known misconduct creates a de facto policy creating liability on the part of the administrator as the official
policymaker of the department. It can rise to a level of deliberate indifference if the administrator or supervisor
was aware of the misconduct and chose to ignore the misconduct or did not take measures to prevent it. In
Diaz v. Martinez (1997) summary judgment was denied because the chief failed to discipline and maintain
accurate records about a rogue officer or recommend remedial training. This demonstrated supervisory
indifference. Moreover, in emphasizing the association between failing to discipline and official policy, the
court held in Grandstaff v. City of Borger (1985) that the police chief was the sole policymaker and therefore
his failure to discipline several officers involved in an egregious shooting, in which a person was killed, was
evidence of a municipal policy of ignoring constitutional rights violations.

In Vann v. City of New York (1995) the court determined that deliberate indifference was evidenced by an
abusive officer who had been the subject of numerous complaints, disciplined several times, and placed on
restricted duty. He was returned to regular duty and committed additional assaults. Prior to his return to
regular duty a psychological evaluation noted that the officer had a personality problem that escalated minor
situations into violent incidents. In returning him to regular duty the chief failed to monitor the problem
officer’s conduct, despite prior “red flag” incidents of violent behavior. After his return to regular duty the
officer continued to receive citizen abuse complaints that were not investigated by the chief. Deliberate
indifference was determined by a pattern of ignoring complaints in which the need to discipline was obvious.

A fundamental requirement of all supervisors is to enforce their own legitimate regulations and follow
through with appropriate discipline as necessary. A correctional officer’s rights were not violated when the
Department of Corrections required him to wear an American flag patch on his uniform shirt (Troster v.
Pennsylvania State Department of Corrections, 1995). In Flynn v. Sandahl (1995) the warden did not violate a
correctional officer’s due process rights by ordering him to submit to a psychiatric examination after co-
workers complained that he had threatened them with physical harm. Any privacy interest of the officer was
outweighed by requirements of maintaining a stable prison workforce.

In several cases supervisors have been held liable for promulgating policies that discourage investigation of
police misconduct, and failing to discipline, which encourage constitutional violations. In Bastia v. Rodriguez
(1983) the court ruled that the persistent failure to discipline subordinates who violate constitutional rights
could give rise to an inference of ratification. In Skevofilax v. Quigley (1984) a police chief was held liable for
continually failing to discipline or control subordinates in the face of knowledge of their propensity to use
force improperly. This created an official custom or de facto policy that was actionable under § 1983. In Haynes
v. Marshall (1989) a prisoner brought a valid claim against a prison superintendent for having a policy of using
force against prisoners to enforce rules.

In Beck v. City of Pittsburgh (1996) a “custom” of failing to discipline officers created liability for the police
chief. It was determined that investigative policies requiring a complainant to produce evidence other than his
or her word, not considering prior complaints against an officer, not having a tracking system for prior
complaints and dispositions, eschewing standards for reporting patterns, and a practice of not reviewing
recommendations for no discipline, were sufficient to establish deliberate indifference. In Nolin v. Town of
Springville (1999) the court found sufficient evidence of deliberate indifference on the part of the chief for
failing to discipline and train officers. In a five- person department, numerous cases involving claims of
excessive force had been settled out of court during a relatively short period. It was determined that all

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members of the department, including the chief, would have known of such claims. After each claim the chief
neither disciplined the officer nor required retraining. This pattern of settling claims in a small department,
without disciplinary action being taken or requiring retraining of officers in the use of appropriate force, rose
to a level of deliberate indifference and liability attached.

Administrative liability will be avoided when supervisors fulfill their basic functions of properly enforcing
security practices and institutional policies. A prison official’s termination of a correctional officer found
sleeping on the job after taking medication for an arthritic knee was not found to be arbitrary or capricious
(Nebraska Department of Correctional Services v. Hansen, 1991). Correctional officials were not liable when
they took prompt effective disciplinary action after a female employee complained of alleged sexual
harassment by a correctional officer (Hirschfeld v. New Mexico Corrections Department, 1990).

If the agency’s disciplinary system is deficient, supervisory liability may attach. In Gutierrez-Rodriguez v.
Cartagena (1989) the court held the police administrator personally liable, as it found the disciplinary system to
be grossly deficient, reflecting a reckless and callous indifference to the rights of citizens. Several officers in the
department had accumulated numerous civilian complaints that had gone uninvestigated. Additionally,
supervisors exhibited a pattern of failing to discipline officers. In this case the plaintiff was shot by four
officers. They had approached his vehicle with guns drawn and the plaintiff, noticing the four in plain clothes,
attempted to speed away. The plaintiff was parked off the road with his girlfriend and was not a “wanted”
person. One round hit him in the back, causing him to drive into a ditch. The car landed on its side and the
plaintiff sustained a back injury, leaving him a paraplegic.

The chief knew the histories of these officers but failed to take remedial or preventive measures. Failing to
do so amounted to deliberate indifference and, as a result, the incident above occurred. The chief was found
liable and the plaintiff was awarded $4.5 million. The disciplinary system existed in name only. The court
found the following procedures inadequate:

Officers investigated could refuse to testify or give a statement
The agency did not have any provision for remedial training as one of the disciplinary options
The withdrawal of a complaint closed the internal investigation without the agency doing anything
about it
The immediate supervisors of the officers were not involved in the disciplinary process.

In another case the disciplinary system was so faulty that the court awarded summary judgment to the
plaintiff. In Cox v. District of Columbia (1993) the civilian review board (which exclusively ruled on excessive
force allegations) chronically delayed decisions and ignored statutory deadlines. The court considered that
these “flagrant” violations deprived citizens of their constitutional rights and amounted to deliberate
indifference on the part of the administration.

Properly following departmental procedures when considering discipline or termination of an employee is
important in defending a claim that an officer was wrongfully discharged. Documenting past occasions of
discipline is critical in justifying a supervisor’s decision to pursue more severe sanctions or termination of the
employee. In Peterson v. Civil Service Commission of Cedar Rapids (2005) the appellate court upheld the
decision of the chief of police of Cedar Rapids, Iowa, when he terminated an officer for an incident of excessive
force. Officer Peterson attempted to stop a motorist for speeding. Peterson activated his lights and siren as the
motorist exited the highway, but the motorist ignored them. The motorist proceeded to his residence and
pulled in the driveway. Peterson stopped behind him and activated his in- car video camera. The motorist
exited his car and ignored Peterson’s commands to stop and keep back from the car. Peterson was joined by
several backup officers and informed the motorist that he was under arrest. The motorist resisted arrest and the
officers forced him to the ground to control and handcuff him. Two of the responding officers informed a
supervisor that Peterson used excessive force during the confrontation by kneeing him in the head as they
pinned him to the ground. Peterson informed a lieutenant that he only used his knee to pin the motorist’s
shoulder for control purposes, which was an authorized technique. The lieutenant, however, informed Peterson
that he thought discipline was warranted. After an internal affairs investigation and an administrative hearing,
the chief fired Peterson for excessive use of force. Peterson appealed the decision and the civil service
commission upheld the termination.

Peterson filed a lawsuit and the court overturned the termination, holding that the videotape of the incident

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did not support the chief’s decision to fire him. The court ruled that the use of force was inadvertent and not
excessive, and ordered that Peterson be reinstated. The civil service commission appealed the decision. The
appellate court reviewed the videotape, witness statements, and the officers’ testimony and found that Peterson
had used excessive force in response to the motorist’s behavior. The court also examined Peterson’s personnel
file and noted that he had a prior suspension for a similar traffic stop. In that incident Peterson pointed his
firearm and taunted a driver for failing to follow his commands. The court noted that the department had
implemented policy and practices for responding to employee misconduct and had followed them in the past.
Thus the court ruled that the chief had the authority to suspend, demote, or fire for misconduct that was
detrimental to the public interest. Given the prior suspension, the severity of the sanction was appropriate as
the next step in progressive discipline.

In contrast, however, an appellate court overturned the termination of an officer who was cited for excessive
use of sick leave and lying during an internal affairs investigation. In Atchison v. Monroe Municipal Fire and
Police Civil Service Board (2011) Officer Atchison appealed her termination to the court after she learned that
several officers in the department had not been disciplined or terminated for the same conduct in which she
was terminated. The lower court rejected her appeal, holding the board’s decision was based on good faith and
upon cause, and she appealed the lower court’s decision.

The appellate court reviewed the case. The record reflected that Atchison committed 27 violations of the sick
leave policy, failed to call to log out for an off- duty job, and lied about the charges during the investigation.
The chief testified that Atchison was an exemplary employee for the first three years of employment but for
the past several years her performance had gone downhill. She had never been the subject of disciplinary
proceedings during her seven- year employment. The chief also testified that in previous internal investigations
other officers had lied and some of them had been terminated. The chief believed he acted in good faith.

The appellate court determined that the termination was excessive punishment in response to Atchison’s
infractions and disproportionate to the punishment handed out to other officers in similar circumstances. The
court noted that the purpose of punishment was to correct the behavior of officers whose conduct was
affecting the department’s morale, and Atchison had not received warnings or been disciplined previously
before being terminated. The court further held that the sick leave policy was ambiguous and some of the
charges against Atchison were refutable. Also, the zero- tolerance policy against lying was ambiguous as it had
frequently gone unenforced in the years following its development. The court found that Atchison had
received commendations on multiple occasions, in addition to her clean disciplinary record. The court
overturned the termination and amended the penalty to a 90- day suspension without pay or benefits.

Clearly administrators and supervisors must have workable disciplinary procedures that are adequate and
legal. They must protect the rights of both the employee and the complainant. Steps of progressive discipline
must be outlined and employees must be made aware of the consequences of misconduct. Supervisors must be
trained in implementing appropriate disciplinary procedures in order to remediate or correct employee
performance. Complaints about employees should be investigated, and proper procedures for conducting the
investigation should be implemented. Supervisory documentation of the investigation and the results should be
kept in the employee’s personnel file. Steps toward termination should be followed as policy and investigation
warranted, as noted in the Peterson case.

In Castagna v. City of Seal Beach (2005) supervisors prevailed in a lawsuit when an officer claimed he was
fired contrary to department policy and law. Officer Castagna became involved in a probate matter and forged
a document. The conduct came to the attention of the department captain and he began an investigation. The
investigation revealed that Officer Castagna introduced a forged document, lied under oath, and lied to
investigators, although the prosecutor declined to file charges. The department issued Castagna a “Notice of
Intent to Discipline,” advising him that the chief was considering terminating his employment. Officer
Castagna was informed of his rights, notified of a pre- disciplinary hearing, and given copies of the forged
documents. He was placed on administrative leave pending the results of the internal affairs investigation.
Several months later Castagna received a copy of the investigation’s findings, concluding that he indeed
engaged in misconduct. The notice did not specify any type of proposed discipline but did stipulate that he was
to respond to the notice. Rather than respond he filed suit, claiming that the department failed to complete the
investigation according to state law within one year and failed to outline any proposed discipline. He claimed
wrongful discipline and requested a temporary order prohibiting the department from disciplining him. The

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officer was subsequently fired.
At trial the court refused the request for a temporary order and also held that the department followed the

proper protocols for conducting an investigation and notifying Castagna of such an investigation. The firing
was also upheld by the court. Officer Castagna appealed and the appellate court affirmed the lower court’s
decision. The appellate court noted that the department followed the law and policy by conducting a timely
investigation once they learned of the misconduct, that Officer Castagna was properly notified, he had been
afforded his rights while on administrative leave, and that the termination was lawful.

Administrators who adhere to their department’s policy in disciplining officer misconduct are likely to
prevail in a lawsuit and will avoid claims of negligent retention. In Day v. Civil Service Commission of Borough
of Carlisle (2008) Corporal Day attended a supervisors’ meeting where the chief of police explained the policy
for properly reporting a complaint against a fellow officer. Later Day violated the policy when he accused a
detective of holding a gun to the head of the detective’s girlfriend, falsifying time records, and taking money
and drugs from an investigation. Day also accused the chief of knowingly covering up these incidents. The
chief performed an investigation and found that the claims were unsubstantiated and initiated discipline
against Day. The chief informed Day by letter and verbally that he was filing charges against him and that any
repetition of such conduct would result in termination. A few days later Day made the same allegations against
three different officers and the chief conducted a second investigation, finding that Day’s claims were
unsubstantiated. As a result Day was terminated. He appealed his termination to the commission and over the
course of a year and several hearings the commission upheld his termination. Day appealed this decision to the
court.

The lower court found in favor of the commission and the appellate court affirmed. Day argued that he was
terminated for other reasons and not for violating departmental policy. The court found no evidence to support
his claims and, because his conduct was a direct act of insubordination, the commission was within its rights to
recommend termination of his employment.

In Saldivar v. Racine (2016) an arrestee brought a § 1983 claim against an officer’s supervisor, Racine, for
failing to protect her from the assaultive officer and a failure to supervise and discipline the officer for prior
misconduct. Saldivar alleged that Officer Pridgen assaulted and raped her. The federal district court dismissed
Saldivar’s claim against Racine on the grounds that Saldivar had failed to plausibly allege that Racine was
deliberately indifferent. The court concluded that because the complaint failed to allege facts that would
plausibly show that Racine had the requisite notice of the risk that Pridgen would assault Saldivar. The court
explained that in order for a supervisor to be held deliberately indifferent, the supervisor must have actual or
constructive knowledge of a grave risk of harm posed by the employee and fail to take available measures to
address the risk. Saldivar did show that Pridgen had a number of disciplinary violations prior to the alleged
assault. Those violations did not, however, include any that would indicate that Pridgen had any propensity for
violence or for any other sufficiently related conduct. This absence rendered speculative any inference that one
might otherwise arguably have drawn that any officer who would commit such an offense likely had a record
that would suffice to give such an indication. The court explained that it did not believe the facts that had been
set forth sufficient to make it plausible that the supervisor— Racine—was liable under §1983 for the horrific
conduct by Officer Pridgen that had been alleged.

First Line of Defense

Critical components of administration include planning, controlling, directing, budgeting, and supervising
subordinates. Administrators must also be concerned with the ever- present liability component, which may
emerge from fulfilling their basic supervisory functions. The first line of defense against litigation begins with
the administrator making a firm commitment and concerted effort to transform administrative functions into a
proactive risk management program to minimize future lawsuits (as discussed in Chapter 5). Administrators
and supervisors represent the best protection against liability, but the basics must be in place first.

Liability Risk Reduction

By integrating the fundamental components of management with risk reduction elements, administrators

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create a strategy that allows the organization to operate effectively and demonstrate a good- faith effort toward
reducing liability potential. Criminal justice agency administrators have a duty in assessing their risk
management priorities to minimize or alleviate the potential for all types of costly internal litigation (Martinelli
& Shaw, 2011). The basic elements of a risk reduction program include the following:

Performing an analysis of agency incidents, complaints, audits, and lawsuits in order to identify
problems specific to agency needs. After an assessment has been conducted, supervisors should obtain
the assistance of legal counsel to determine the latest court decisions (state and federal) that affect
prisoner and employee rights.
Based on the outcome of the internal assessment, outdated policies should be revised and new policies
should be developed. Revising existing policy and procedure manuals is essential to complying with
court rulings and changes in the law. Once policies are revised or newly developed, administrators
should keep supervisors updated on the revisions and the administrative interpretations of the
revisions. This will ensure proper implementation and enforcement. It is recommended that agency
policies be reviewed annually and revised accordingly. Correctional officials are encouraged to
maintain up- to- date policies and procedures, developed in accordance with state and professional
correctional standards.
All supervisors and employees should receive training in the policy manual on a regular basis.
Moreover, all employees should be trained regularly in the legal dimensions of the job and in
frequently performed tasks. All employees should receive regular competency-based training in the
types of weapons and equipment that correspond to their duties.
Administrators and supervisors must provide proper direction, supervision, and reinforcement of
training objectives to ensure that the mission of the agency is being carried out. Administrators must
investigate complaints and follow established agency disciplinary procedures as necessary.
Written documentation of training, complaints, investigations, and employee disciplinary actions by
administrators and supervisors is essential to corroborate management’s role in supervising
subordinates. Written documentation provides a record of events and incidents and establishes a
process of reasonable actions taken. It will provide protection for the individual and the agency in civil
litigation.

Summary

This chapter has examined the basis of supervisory liability under § 1983. While administrative liability under
§ 1983 started with the Monell decision, it is still developing and has emerged as a primary source of litigation
for supervisors. Case examples indicate that this area of litigation will continue and it is incumbent upon
administrators to keep abreast of the legal standards imposed upon them. Through court decisions, the days of
unfettered supervisory discretion have been replaced with several theories of supervisory liability. Judicial
intervention has created a mixed blessing for the administrator.

Management theories and practices indicate that administrators should be competent in directing the
organization, as well as in planning, budgeting, staffing, decision- making, controlling staffing, reporting, and
supervising employees. Since the Monell decision administrators must also develop and maintain a managerial
competency in understanding that their actions or omissions may expose them to a heightened risk of liability
under § 1983. This chapter examined six of the seven areas in which supervisors may be named as defendants
for allegedly failing in their administrative functions: (1) negligent hiring, (2) negligent assignment, (3)
negligent entrustment, (4) failure to direct, (5) failure to supervise, and (6) failure to discipline/negligent
retention (failure to train is addressed in Chapter 7). The legal standard of review in these types of allegations
is that of deliberate indifference, which is a high standard for the plaintiff to prove.

Since the Ashcroft decision (2009) various federal circuit courts have grappled with the elements that would
underscore supervisory liability. Consistent with the language of § 1983— which states “every person under
color of law, who subjects, or causes a person to be subjected to a deprivation of constitutional rights, shall be
liable to the party injured”—many courts require the plaintiff to prove the following four factors in order to
prevail on a claim of supervisory liability:

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a. Active unconstitutional behavior on the part of the supervisor, but the supervisor does not have to
physically participate or actually be on scene to be potentially liable.

b. Isolated instances of unconstitutional activity will not support a claim of supervisory liability; the
supervisor must be on notice through either actual or constructive knowledge.

c. The supervisor’s failure to supervise, control, or train the offending individual is not actionable
unless the supervisor either encouraged the specific incident of misconduct in some other way
directly participated in it. This may mean that a plaintiff must show that the defendant at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the
offending officer(s).

d. Whether there is a causal connection between the defendant’s wrongful conduct and the violation
alleged.

For example, in Shuford v. Conway (2016) jail detainees filed a civil action claiming that officers of the Rapid
Response Team (RRT), a specialized unit of officers who are trained to respond to emergencies in the jail,
routinely used excessive force and the restraint chair, which led to widespread abuse by the team of use of
force measures, and that the sheriff’s policy and knowledge of the abuse resulted in deliberate indifference to
their constitutional rights. The detainees submitted eight videotapes of the RRT’s use of excessive force with
detainees in the restraint chair, as well as affidavits from seven detainees claiming they were the subject of
excessive force by the team. The lieutenant in charge of the RRT and several other officers had informed the
sheriff about issues of some team members using excessive force. The lieutenant and the sheriff testified that
they had reviewed numerous videotapes and written reports by team members on a regular basis, and in those
cases where officers on the team used excessive force they were referred to the professional standards unit of
the sheriff’s department for investigation. The district court ruled that neither the lieutenant nor the sheriff
were deliberately indifferent and no supervisory liability attached, and the Eleventh Circuit reversed regarding
liability of the sheriff. The court found that there was no causal connection supporting supervisory liability
with the lieutenant. However, the court ruled that the sheriff was on notice about widespread RRT abuse,
therefore he had subjective knowledge that some of the RRT members routinely abused their authority, that
some members of the RRT used excessive force on some detainees, used the restraint chair excessively, and
that he disregarded the risk, thereby constituting deliberate indifference supporting supervisory liability.

Court intervention relative to administrative functions has created a legal arena that requires administrators
to be more proactive in working with employees, managing the operations of their organization, and ensuring
they strengthen their hiring, supervising, and discipline practices (LMC, 2016). Court intervention, however,
has also helped administrators to acquire more or new resources and facilities, which have improved overall
operations and employee performance. Thus administrators need to become more proactive in developing their
knowledge of the law and the liability dimensions of their jobs. Developing and implementing risk reduction
strategies as discussed in this chapter and Chapter 5 can assist administrators in operating an organization that
works toward reducing the risk of supervisory liability, thus making it more efficient. Moreover, administrators
should be committed to further educating their employees in the legal nature of their responsibilities. This
combined approach will assist in reducing the number of lawsuits filed, as well as placing the agency in the
best position to successfully defend against a lawsuit.

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References

Bushway, S. (2004). Background investigations of police candidates: one of the most important investigations
you’ll ever conduct. Police Disciplinary Bulletin, 12, 1–3.
del Carmen, R.V. (1991). Civil liability in American policing: a text for law enforcement personnel. Englewood
Cliffs, NJ: Prentice- Hall.
del Carmen, R.V. & Kappeler, V.E. (1991). Municipal and police agencies as defendants: liability for official
policy and custom. American Journal of Police, 10, 1–17.
Kappeler, V.E. (1997). Critical issues in police civil liability (2nd ed.). Prospect Heights, IL: Waveland Press, Inc.
League of Minnesota Cities, LMC (2016, January). Police department management and liability issues;
information memo 1–39. St. Paul, MN [accessed at www.icm.org, on March 30, 2017].
Martinelli, T.J. & Shaw, L.E. (2011, April). Updating ethics training— policing privacy series: managing risk by
reducing internal litigation. Police Chief, 78, 112–118.
Ryan, J.R. (2009). United States Supreme Court raises significant issues with respect to supervisory liability:
legal updates. Legal, Liability and Risk Management Institute, www.LLRMI.com.

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7
Liability for Failure to Train

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Overview

Since the United States Supreme Court decision in City of Canton v. Harris (1989) the plaintiff in the majority
of civil lawsuits cites as a secondary claim that the errant officer was inadequately trained (Box 7.1). Several
scholars estimate that actions for failure to train and failure to supervise are the two most common types of
claims brought against police administrators (Barrineau, 1994; Kappeler, 1997; del Carmen, 1991; Staff, 1990).
Although tremendous strides have been made in mandating pre- service police training throughout the United
States and the number of hours of in- service training for veteran officers is increasing (Flink, 1997), failure to
train allegations are still a concern for the police administrator.

Because failure to train claims represent a majority of supervisory liability actions, this chapter addresses
this critical managerial responsibility. Criminal justice administrators can be held liable if inadequate or
improper training causes injury or the violation of an individual’s constitutional rights. Ongoing training is
critical for avoiding civil litigation (Gallagher, 1990) and in structuring a defense to legal assertions (Vaughn &
Coomes, 1995).

Liability Framework for Failure to Train Under Canton

Supervisory Liability

Following Monell v. New York City Department of Social Services (1978), numerous § 1983 lawsuits have been
filed against criminal justice departments on the basis that the incident involved misconduct that was
motivated by the agency adopting a policy or custom of inadequate training or supervision of officers. These
cases generated considerable judicial disagreement regarding the appropriate standard with which to assess
these actions. Standards applied ranged from ordinary negligence to willfulness. Disagreement as to the type of
evidence required to prove inadequate training produced a great deal of debate in the federal courts. Much of
the uncertainty was resolved in the Supreme Court’s 1989 decision in Canton.

Expansion of the Deliberate Indifference Standard

The Supreme Court ruled that a local government can be held liable under § 1983 if an officer injures a person
due to a deficiency in training. Inadequate training may serve as a basis for § 1983 liability where the failure to
train amounts to “deliberate indifference” to the rights of persons with whom the police may come into
contact. The degree of fault is fundamentally related to the policy requirement noted in Monell (Silver, 2017).
Moreover, Monell will not be satisfied by a mere allegation that a training program represents a policy for
which the city is responsible. The Court stated that “in light of the duties assigned to specific officers or
employees, the need for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, the policy makers of the city can reasonably be said to have been deliberately
indifferent to the need.”

Box 7.1 City of Canton v. Harris (1989)

Harris was stopped for speeding and was arrested after she became uncooperative with the officer. She
was transported to the police station in a patrol wagon and upon arrival was found sitting on the floor.
She was brought inside for processing, where she collapsed to the floor twice. The officers left her on the
floor for approximately one hour during processing and failed to summon medical attention. Court
testimony revealed that the shift commander was responsible for determining the medical care of
arrestees but did not receive training with which to make medical decisions. Harris was released into the
care of her family, whereupon she was taken to a hospital by an ambulance summoned by her family. She
was diagnosed as suffering from emotional stress reaction, anxiety, and depression. She was hospitalized

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for a week and received outpatient medical care for about one year. She sued the city for a variety of
claims, but most notable were the claims of denial of medical care while in custody, and training
deficiencies of officers in medical care for arrestees. Harris prevailed and was awarded $200,000 in
damages. The city appealed to the Sixth Circuit Court of Appeals, which ruled that a municipality could
be held liable for failure to train when a plaintiff could prove intentional, reckless, or gross negligence on
the part of the municipality. An error was made by the court in explaining jury instructions and a retrial
was ordered. Prior to retrial the city sought review by the Supreme Court and they granted certiorari to
determine the issue of whether a municipality could be held deliberately indifferent to the training needs
of its officers.

The Court concluded that the standard with which to examine claims of failing to train is deliberate
indifference. Deliberate indifference can mean a callous disregard of known risks and failing to take steps
to abate them, or a conscious choice from among several alternatives. While the Court ruled that a
municipality must provide ongoing training for recurring job tasks an officer encounters, the justices did
not state how frequently training must be provided nor the duration of the training. On remand the
appellate court reversed its former decision, based on deliberate indifference.

This case is significant because the Court has expanded the standard of deliberate indifference to
claims against administrators for failing to train their officers. Deliberate indifference is a higher standard
for a plaintiff to prove in court. Officers must receive realistic ongoing training to “obvious” recurring job
functions. The decision also applies to correctional officials.

The former standard of gross negligence used by many lower federal courts was rejected by the Supreme
Court, and the higher standard of deliberate indifference was adopted. This standard was first established in a
Texas prison case, Estelle v. Gamble (1976). Deliberate indifference was expanded in Canton and requires proof
of much more than negligence. Over the years the Supreme Court has established that deliberate indifference
resides on a continuum between “mere negligence and something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result” (Vaughn & del Carmen, 1995). “Deliberate”
means that a particular course of action has been chosen from among several alternatives, and “indifferent”
means there has been some conscious disregard for a person’s rights (Plitt, 1997). Only where failure to train
reflects a “deliberate” or conscious choice by a municipality can a city be liable for such a failure under § 1983.
Liability may not attach for failure to train or improper training without some proof that the department was,
or should have been, aware of the need and then made a deliberate choice not to provide training, or not to
review and/or improve the training provided.

Factors Necessary to Establish Deliberate Indifference

The Court’s opinion provides a framework for litigating failure to train under the deliberate indifference
standard. Actionable cases of inadequate training rest with the plaintiff proving the following factors. First, it
must be established whether a training program is adequate to the tasks that the particular employee must
perform, and if it is not, whether such inadequate training can justifiably be said to represent “city policy.”
Second, the identified deficiency must be directly related to ultimate injury. The failure to train must have
been the cause of harm. Third, it is not necessary for a policy regarding training to be unconstitutional in order
for liability to attach. A valid policy may be unconstitutionally applied, and when the training in how to apply
the policy is deliberately indifferent, liability may attach. Fourth, in general, one incident of improper training
will not result in liability. A pattern or history of problems or incidents that can be related to improper training
will normally be the key to liability. Fifth, the focus of training must address regular and ongoing tasks that
officers routinely face. The Court noted that the use of deadly force is one such area requiring regular training.
The plaintiff must prove that these known needs were left unattended by the municipality. Finally, the degree
of training required need only be adequate to address a particular matter. The Court acknowledged the need
for a department to evaluate its needs and allocate appropriate resources, but rejected the idea that training
must be the most modern available. The standard established by the Court clearly makes it more difficult for
plaintiffs to prevail in a § 1983 lawsuit.

After 22 years of the Canton decision the United States Supreme Court took occasion to further elaborate on

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the issue of training in Connick v. Thompson (2011). Thompson was found guilty of attempted robbery and
murder in separate incidents and was sentenced to the death penalty. After 18 years in prison, 14 years on
death row, and one month prior to his execution, undisclosed evidence was discovered. Thompson’s private
investigator discovered the crime lab report from the armed robbery investigation in the files of the New
Orleans Police Crime Laboratory. Thompson was tested and found to have blood type O, proving that the
blood on the swatch was not his. Thompson’s attorneys presented this evidence to the district attorney’s office,
which, in turn, moved to stay the execution and vacate Thompson’s armed robbery conviction. The Louisiana
Court of Appeals then reversed Thompson’s murder conviction, concluding that the armed robbery conviction
unconstitutionally deprived Thompson of his right to testify in his own defense at the murder trial.

Thompson then brought this action against the district attorney’s office, Connick, Williams, and others,
alleging that their conduct caused him to be wrongfully convicted, incarcerated for 18 years, and nearly
executed. The only claim that proceeded to trial was Thompson’s claim under § 1983 that the district attorney’s
office had violated Brady by failing to disclose the crime lab report in his armed robbery trial (Brady v.
Maryland, 1963). Thompson alleged liability under two theories: (1) the Brady violation was caused by an
unconstitutional policy of the district attorney’s office; and (2) the violation was caused by Connick’s
deliberate indifference to an obvious need to train the prosecutors in his office in order to avoid such
constitutional violations. Before trial, Connick conceded that the failure to produce the crime lab report
constituted a Brady violation. Accordingly the district court instructed the jury that the “only issue” was
whether the non- disclosure was caused by either a policy, practice, or custom of the district attorney’s office
or a deliberately indifferent failure to train the office’s prosecutors.

Prosecutors testified that office policy was to turn crime lab reports and other scientific evidence over to the
defense. They also testified that, after the discovery of the undisclosed crime lab report in 1999, prosecutors
disagreed about whether it had to be disclosed under Brady, absent knowledge of Thompson’s blood type. The
jury rejected Thompson’s claim that an unconstitutional office policy caused the Brady violation, but found the
district attorney’s office liable for failing to train the prosecutors. The jury awarded Thompson $14 million in
damages, and the district court added more than $1 million in attorney’s fees and costs. The Fifth Circuit
affirmed by an equally divided court. The United States Supreme Court granted certiorari and reversed the
appellate court’s decision. The Court examined whether a district attorney’s office may not be held liable under
§ 1983 for failure to train its prosecutors based on a single Brady violation.

The Court reaffirmed its decision in Canton and stated that deliberate indifference in this context requires
proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in
their training program would cause city employees to violate citizens’ constitutional rights. It further reiterated
that a pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to
demonstrate deliberate indifference. In a five- to- four decision, Justice Thomas wrote the opinion and
determined that a single incident created liability.

Thompson mistakenly relied on the “single- incident” liability, contending that the Brady violation in this
case was the “obvious” consequence of failing to provide specific Brady training and that this “obviousness”
showing can substitute for the pattern of violations ordinarily necessary to establish municipal culpability.

In Canton, the Court theorized that if a city armed its police force and deployed them into the public to
capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force,
the failure to train could reflect the city’s deliberate indifference to the highly predictable consequence, namely
violations of constitutional rights. Thomas found that failure to train prosecutors in their Brady obligations did
not fall within the narrow range of Canton’s hypothesized single- incident liability. The obvious need for
specific legal training present in Canton’s scenario— police academy applicants are unlikely to be familiar with
constitutional constraints on deadly force and, absent training, cannot obtain that knowledge— was absent.
Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand
constitutional limits, and exercise legal judgment. They receive training before entering the profession, must
usually satisfy continuing education requirements, often train on the job with more experienced attorneys, and
must satisfy licensing standards and ongoing ethical obligations. Prosecutors not only are equipped but are
ethically bound to know what Brady entails and to perform legal research.

Taking a narrow perception of the Canton decision, Thomas opined that recurring constitutional violations
are not the “obvious consequence” of failing to provide prosecutors with formal in- house training. The nuance

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of the allegedly necessary training also distinguished the case from the example in Canton. The prosecutors
were familiar with the general Brady rule. Thus Thompson could not rely on the lack of an ability to cope with
constitutional situations that underlies the Canton hypothetical, but must assert that prosecutors were not
trained about particular Brady evidence or the specific scenario related to the violation in his case. That sort of
nuance failed to support an inference of deliberate indifference. Contrary to the holding below, it did not
follow that, because Brady has gray areas and some Brady decisions are difficult, prosecutors will so obviously
make wrong decisions that failing to train them amounts, as it must, to “a decision by the city itself to violate
the Constitution.” Connick argued that he was entitled to judgment as a matter of law because Thompson did
not prove that he was on actual or constructive notice of, and therefore deliberately indifferent to, a need for
more or different Brady training, and the Court agreed.

The decision shows that the Court made a distinction between legal training for attorneys and criminal
justice practitioners. Training for law enforcement and corrections personnel should be conducted consistent
with the Court’s requirement of providing them with ongoing training to tasks that they encounter on a
regular basis. The Court also maintained its former principle, that a successful plaintiff must show a pattern of
violations before imposing liability, unless one incident is particularly egregious. Further, the decision confirms
that the standard of deliberate indifference is difficult to overcome before liability will attach.

Application of Deliberate Indifference

Although the Court resolved the long- debated controversy about inadequate training issues, it also created
many questions regarding how lower courts should interpret and apply the deliberate indifference standard.
Questions pertaining to failure to train issues include: (1) what constitutes a policy of inadequate training?; (2)
can a municipality be liable for the single act of an officer?; (3) will liability attach for an occasional officer
mistake?; (4) who has the responsibility to train officers?; and (5) who determines whether the training was
adequate?

Answers to these questions are far from clear, but cases can provide general trends in how courts have
applied the deliberate indifference standard in claims of deficient training. The mere fact that an incident
occurred and a constitutional right may have been involved does not automatically indicate that there is a
training deficiency. The failure to train must first be linked to some specific policy relative to the training. In
order for supervisory liability to attach, the burden of proof rests with the plaintiff to show that the policy was
the moving force behind the constitutional violation (Polk County v. Dodson, 1981). A policy exists only when a
course of action is established by the official responsible for final policy with respect to the subject matter
involved (Pembaur v. City of Cincinnati, 1986). Application of these two Supreme Court cases is illustrated in
Vineyard v. Murray County of Georgia (1993). The plaintiff brought claims of excessive force, failure to train,
and failure to supervise against the sheriff. The claims arose from several deputies beating a restrained arrestee
in a hospital bed. The deputies beat him repeatedly on the head and chest. He sustained a broken jaw and other
injuries. Applying Canton to the policy and training issues, the federal district court found that the sheriff was
deliberately indifferent to the needs of the arrestee. The Eleventh Circuit Court of Appeals determined that the
county had inadequate polices for training, supervision, and discipline, as well as inadequate procedures for
following up on citizen complaints. The manner in which the sheriff investigated the incident evidenced a
policy of deliberate indifference and a manual of policies and procedures did not exist. The plaintiff was
awarded $175,000 in compensatory damages and $60,000 in punitive damages. The court determined, however,
in Robinson v. City of St. Charles (1992) that in order to prevail in a policy/training claim for excessive force,
the plaintiff must show that the city had notice that its police training was inadequate and that it deliberately
chose not to remedy the situation.

Can training liability be imposed for actions stemming from a single incident? The general answer to this
question is no, but with an exception (Oklahoma City v. Tuttle, 1985). The Supreme Court, deciding a case
about the fatal shooting of an unarmed individual, gave a qualified ruling, holding that claims of failure to
train and supervise stemming from a single unconstitutional activity are insufficient to impose liability unless
it was caused by an existing unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker. This holding is important because it rejects liability based on a single incident but allows for an
exception: if the incident was caused by an existing, unconstitutional policy (del Carmen, 1991). The exception
was applied by the Court in Pembaur v. City of Cincinnati (1986). The county prosecutor was the “official

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policymaker” and directed officers to make a warrantless, forceful entry into a house with axes. The deputies
were attempting to arrest two doctors who failed to attend a grand jury hearing. The Court ruled that the City
of Cincinnati could be held liable on one occasion for a Fourth Amendment violation because the prosecutor’s
decision to direct officers to enter the house constituted official policy or custom.

Liability was imposed in a single incident of failure to train and supervise in Atchinson v. District of
Columbia (1996). The plaintiff— who was carrying a machete and was shot by an officer after receiving
nothing more than a warning to “freeze”—adequately asserted a claim against the District of Columbia for
inadequately training and supervising officers in the use of deadly force. The federal appeals court held that
even a single incident of such use of force was sufficient to support the complaint of inadequate training and
supervision.

Determining the adequacy of a training program can be difficult. In Canton, the Court did not specify the
subject matter or the number of hours required for officers to attend. In an effort to avoid federalism and to
avoid second- guessing municipal training programs, the Court took the position that training be afforded to
officers in order to “respond to usual and recurring situations with which they must deal.” In resolving this
question the Court focused on the training program in relation to the tasks that the particular officers must
perform. “That a particular officer may be unsatisfactorily trained will not alone suffice to attach liability on
the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program.”
According to the Court, liability will not attach for a sound program that has been negligently administered.
Neither will it suffice to impose liability for an officer making a mistake or failing to avoid an accident because
he should have received more or better training—“[a]dequately trained officers can make mistakes.” Liability
can only attach when the city’s failure to train reflects deliberate indifference to the constitutional rights of
citizens. The deficiency must be closely related to the ultimate injury. Training should be designed to
correspond directly to the recurring tasks of police work (Jones v. City of Chicago, 1989).

The nature of the police function is such that, in all responsibly managed police departments, officers are
required to undergo training prior to being assigned patrol work. The court used the topic of lethal force as an
example to demonstrate the need for adequate training. In Zuchel v. City and County of Denver, Colorado
(1993) the city was found to be deliberately indifferent in regard to providing adequate training in the use of
deadly force. The training consisted of only a lecture and a film and did not include “live” shoot/don’t shoot
practice training. In Houck v. City of Prairie Village, Kansas (1996), however, failure to have a detailed training
program on problems of taking suicidal or mentally disturbed police officers into custody was not deliberate
indifference to a known problem. The chief was not liable for failing to take custody of a suicidal officer who
fired his gun within his residence. While not a deadly force case, the court in Dorman v. District of Columbia
(1989) held that the need for specific training in suicide prevention, beyond what the officers had received, was
not so obvious that the city’s policy in not providing it could be characterized as deliberate indifference.

The standard of review in failure to train litigation is deliberate indifference. When analyzing assertions of
inadequate training, the court will determine three critical components: (1) whether a constitutional right was
violated; (2) whether there was a failure to train or the training was inadequate; and (3) whether there was
deliberate indifference to the need for training.

In Griffith v. Coburn (2005) a federal district court of Michigan examined the question of whether officers
should receive additional training beyond academy training. Officers attempted to serve an arrest warrant on
Arthur Partee and met resistance in his house. Partee had exhibited bizarre behavior at home, had a history of
mental impairment, and his mother asked that the police take him into custody. At the house the officers met
resistance as they attempted to take control of Partee. Partee lunged off of a couch at the officers and struggled
with them. During the struggle Partee managed to unsnap one of the safety snaps on an officer’s holster and
began to pry on it. The officer placed him in a lateral vascular neck restraint for about two to three seconds and
they fell to the floor. Partee became unresponsive and resuscitation efforts by emergency medical personnel on
scene failed to revive him.

Partee’s estate filed a § 1983 lawsuit against the officers for excessive force. A claim was also filed against
the chief of police for being deliberately indifferent to the training needs of the officers who used the neck
restraint. The court granted summary judgment to the officers, finding that the neck restraint was not
excessive force. The court assessed the failure to train claim within the framework of two components: (1)
“failure to provide adequate training in light of foreseeable consequences that could result from the lack of

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instruction”; and (2) “failure to act in response to repeated complaints of constitutional violations by its
officers.” Documentation was presented that showed that the officers received more than adequate training in
the Pressure Point Control Tactics (PPCT) lateral neck restraint. Such training was approved by the state of
Michigan’s police training standards council.

The court ruled that the plaintiff failed to show that the need for post- academy training on the neck
restraint was so obvious that the police department would be acting with deliberate indifference if it failed to
conduct further training. The court also noted that the plaintiff failed to show evidence that the chief
inadequately trained his officers and that the department was on notice by complaints from the community
that officers misused the neck restraint. Absent such evidence, the court granted summary judgment to the
chief, concluding that the chief was not on notice that the training was inadequate.

Status of Failure to Train Liability

What has been the impact of the Canton decision on police training? In answering this question, Ross (2000)
conducted a 10- year analysis of 1,500 published § 1983 federal court decisions citing the administrator for
failure to train. Case analysis revealed that 64 percent of the litigation involved municipal police departments,
29 percent involved county sheriff departments, five percent involved state police agencies, and two percent
involved transit authority police agencies. All 1,500 cases arose from police officer actions, followed by claims
of inadequate training (100 percent), failure to supervise (45 percent), failure to discipline (30 percent), and
failure to direct (25 percent). Analysis indicates that failure to train and failure to supervise were combined as
managerial liability issues in 54 percent of the cases. For example, an officer may have decided to engage in a
high- speed pursuit and, as a result, the fleeing suspect killed an innocent third party. The estate of the
deceased filed a § 1983 claim against the officer for deciding to pursue, and as a secondary claim filed a failure
to train action against the administrator.

Table 7.1 identifies the 10 most frequently litigated training categories. Police administrators prevailed in
slightly less than two- thirds of the litigation, or a two- to- one ratio. Non- lethal force and lethal force (i.e.,
excessive force claims) combine to be the most litigated areas asserting a failure to train officers (25 percent).
Seventy- five percent of allegations asserting inadequate training in non- lethal force cases pertain primarily to
physical force techniques and the use of equipment. Five of the categories (50 percent) involve issues of citizen
deaths or injuries (lethal and non- lethal force, detainee suicide, pursuits, and medical care issues). Four of the
categories (40 percent) involve high compensatory awards to the plaintiffs (pursuits, lethal/non- lethal force,
and medical care issues). Three of the categories (30 percent) pertain to potential officer safety issues (non-
lethal/lethal force and pursuits).

The data show that the standard of deliberate indifference is a high hurdle for the plaintiff to overcome
when asserting a training deficiency. Despite this, the plaintiffs prevailed in approximately one- third of the
cases overall and the average award was significant, amounting to more than $450,000. Lethal force and
emergency vehicle operations categories skewed the average award due to claims that stemmed from wrongful
death lawsuits. Claims asserting the denial of medical care and non- lethal force also account for high average
awards granted to the plaintiff. Attorney’s fees averaged slightly more than $60,000.

Table 7.1 Top Ten Categories in Police Training Litigation Since Canton

Topic Plaintiff Prevailed %
(#)

Police Prevailed %
(#)

Average
Award

Average Attorney
Fee

Non-lethal Force 44 (99) 55 (126) $351,219 $79,592
 Physical (55%)
 Baton (20%)

 Restraints (17%)
 Aerosols (6%)

 Taser(2%)
False Arrest/Detention (n =

185)
37 (69) 63 (116) $155,100 $35,300

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Search and Seizure 35 (60) 65 (110) $148,000 $34,800
 Residence (44%)
 Personal (23%)
 Vehicle (19%)

 Strip (14%)
Failure to Protect 38 (60) 62 (100) $185,000 $39,400
Detainee Suicide 37 (57) 63 (96) $231,000 $73,600

Lethal Force 42 (64) 58 (88) $1,212,567 $96,100
Emergency Vehicle 39 (57) 61 (88) $1,389,789 $95,900

Medical Care 38 (52) 62 (86) $472,789 $100,500
Police as Plaintiff 19 (19) 81 (81) Not reported Not reported

Other 16 (15) 84 (82) $289,678 Not reported
Total 36 (552) 64 (973) $492,794 $60,680

Determining accurate award trends in police civil liability cases is problematic. These figures must be read
with caution because the courts do not document the award or the amount of attorney’s fees assessed in every
published case. Moreover, the figures do not reflect the cost or the time that officers, administrators, or counsel
spent in preparing to defend or try the case. Therefore these figures are only presented to show limited trends
in these categories and to reveal categories in which higher awards are more likely to occur, should the
plaintiff prevail.

Implications of Failure to Train Litigation

Each litigated category in Table 7.1 represents the most fundamental and critical tasks that police officers
routinely perform, yet deficiency in training is frequently asserted. The prevailing ratio indicates two
important factors of the deliberate indifference standard. First, the standard is difficult for plaintiffs to
establish. Second, a majority of police departments appear to be providing training and successfully defending
these allegations in a significant number of cases. Despite the prevailing record, the potential for liability still
exists as the following discussion of cases illustrates.

Lethal and Less-Lethal Force

These two categories represent critical issues for police agencies and exhibit high- risk areas for liability.
Further, both categories represent high awards granted to prevailing plaintiffs. Police administrators are
encouraged to ensure that their use- of- force policies reflect the Graham v. Connor (1989) and Tennessee v.
Garner (1985) decisions, and provide ongoing refresher training for all officers in competently using their
firearms, empty- hand control techniques, restraints, other control equipment, and the constitutional limits of
using force. These two cases provide the standards for examining claims of excessive force by police officers. In
Davis v. Mason County (1991) a jury awarded four plaintiffs $528,000 in compensatory damages, $225,000 in
punitive damages, and $323,559 in attorney’s fees in an excessive force case involving four deputies. For
approximately four months these deputies had illegally stopped, beaten, and illegally arrested citizens. It was
discovered that the deputies had little or no training, and at least one deputy did not attend a police academy.
The court determined that the county exhibited deliberate indifference to the training needs of the deputies in
the constitutional limits of force. In Bordanaro v. McLeod (1989) the plaintiff was awarded $5.3 million for
deliberate indifference due to a “practice of breaking down” doors without a warrant. A lack of continuing
training after the academy was found to have risen to a level of deliberate indifference involving deadly force,
searches and seizures, and pursuits. The court found that the department was “ill- prepared and ill- equipped to
perform the obvious and recurring duties of police officers.” The department was operating under policies
established in 1951 and no supervisory training was provided. The court in Walsweer v. Harris County (1990)
awarded $6.3 million to a man rendered paraplegic after he was shot five times by the police. The county was
held liable for inadequately training officers in the use of deadly force and maintaining deficient policies
regarding force. Conversely, in Mateyko v. Felix (1990) the court held that providing three to four hours of

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training in the use of a Taser was adequate, even if officers did not know its full physical effects.
Frequently a plaintiff will automatically assume that an unreasonable use of force verdict will support a

claim of failure to train. Such a presumption is not automatic, as the courts generally use the following criteria
to review claims of failure to train: (1) the training program was adequate for preparing the officers to perform
the tasks they encounter; (2) the training program was adequate in addressing the subject matter under
question; and (3) whether the inadequacies of a training program contributed to or actually caused the injury.

In Ciminillo v. City of Cincinnati (2006) such an issue was appealed to the Sixth Circuit Court of Appeals. A
crowd attending a party moved the “party” to the street and many of the participants became rowdy by
shouting, setting fires, and throwing bottles at other nearby residents. Officers responded wearing riot gear and
the rowdy party crowd began throwing bottles at them. The plaintiff, who was not participating with the
crowd, attempted to leave the area by exiting through the back yard of a nearby house. The homeowner
stopped him in the yard and threatened him with a bat. As the plaintiff was moving away from the yard, he
claimed, he observed a kneeling police officer firing “bean bags” at the crowd and he approached the officer
with his hands raised, in a non- threatening and compliant manner. Ciminillo claimed that the officer
discharged a bean bag at him, striking him in the chin and chest while he was attempting to leave the area at
the request of the officer. He claimed that he sustained injuries to the chin and chest (requiring stitches in his
chin), bruised lungs, and permanent facial scars.

The officer who fired the bean bag had a different version of the incident. The officer claimed that he gave
several orders for Ciminillo to stop, but he kept advancing toward him while he was in the act of throwing an
unknown object in his direction. Ciminillo filed a § 1983 lawsuit, claiming that the officer used excessive force
in violation of his Fourth and Fourteenth Amendment rights, and also filed state tort claims for assault and
battery. He also filed a claim against the City of Cincinnati for failing to adequately train the officer.

The lower court granted summary judgment on behalf of the officer and the city, and the plaintiff appealed
the decision. The appellate court addressed the issue of whether the plain-tiff was seized and how that may
affect the use of force. The court ruled that the use of a bean bag resulting in an injury equates to a seizure.
The court reasoned that a seizure occurs when a person becomes the deliberate object of an officer’s exertion of
the use of force. Using the criteria established in Graham v. Connor (1989), the court found that Ciminillo was
attempting to comply with the officer, approached him with his hands up, was not threatening the officer, and
was not committing a crime. The court reversed summary judgment on behalf of the officer, determining that
shooting a non- threatening person with a less- than- lethal device was unreasonable force.

The appellate court affirmed the lower court’s ruling that the city did not fail to adequately train the officer.
According to the court, the plaintiff failed to provide evidence consistent with the three previously mentioned
criteria. The plaintiff failed to show that there was a connection between the injuries sustained and a failure to
train officers or an inadequacy in the training program. Further, the court held that the plaintiff could not
produce evidence that revealed that the use of bean bags had been misused on past occurrences. Summary
judgment for the city was affirmed.

A common strategy of the plaintiff when asserting failure to train is an attempt to show that the agency
adopted a practice or policy of training that violates a person’s constitutional rights. In Luke v. Brown (2007)
the plaintiff argued that the practice of training officers to shoot twice in rapid succession (double- tap) when
confronted with a suspect who is wielding an edged weapon in a threatening manner from a distance of 21 feet
or less was unconstitutional. The plaintiff presented an expert who opined that the accepted standard in police
work is to train officers to “evaluate and shoot, evaluate and shoot,” and argued that the lack of a period of
evaluation between shots rises to a level of deliberate indifference. The court awarded summary judgment and
ruled that the plaintiff failed to cite any precedent establishing that the firing of a second shot immediately
after the first shot renders the second shot unconstitutional under the circumstances. The court agreed that
officers need to be trained in the constitutional provisions of using lethal force, and acknowledged that it was
undisputed that Dekalb County did train its officers accordingly. The court noted that the plaintiff did not
present any evidence of a prior incident in which a county officer caused an injury to another by excessive
force because of the double- tap method. Thus, adopting a practice of training the double- tap method of firing
a weapon was not unconstitutional.

In Escobar v. City of Houston (2007) the issue of training regarding firearms handling was asserted by the
plaintiff. The court examined two issues: (1) whether an officer received proper instruction on indexing his

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weapon before a decision to shoot was made; and (2) whether the officer’s training was inadequate 17 months
after graduating from the police academy and was the cause of the Escobar suit. The city argued that its
training requirements met and, in some respects, exceeded the standards set by the state of Texas. The city
maintained that no amount of training can eliminate the possibility of an accident and that no amount of
indexing training will ensure that an officer will properly index his finger each time his weapon is drawn.
Evidence was shown that the chief conducted an internal affairs investigation into each incident. The city also
presented comparison evidence showing that, in the numerous daily contacts between the police and the
public, accidental discharges of a weapon were statistically unlikely.

The court, however, rejected the city’s arguments, stating that meeting the state standard did not equate to
finding no constitutional violation. Further, the court rejected the comparison argument regarding officers and
the public contact with no accidental discharges. Rather, the court focused on whether examining prior
incidents showed a “pattern” of deficient training that is obvious and obviously likely to result in a
constitutional violation. According to the court, evidence of 26 similar incidents of accidental discharge over
five years, combined with memos and letters from the chief regarding firearms training, the inconsistent
evidence as to what training officers actually received on firearms indexing, and the obviousness of the risk
created if officers were not trained on indexing, showed deliberate indifference to officer training, thereby
precluding summary judgment.

In Swofford v. Eslinger (2009) deputies pursuing two felony car burglary suspects encountered a property
owner, armed, on his own property and shot at him. In a lawsuit by the property owner, the sheriff failed to
offer any evidence concerning how officers were trained in the proper use of deadly force and admitted that
the decision to use firearms was completely up to the deputies. The sheriff was denied summary judgment by
the court. The need to train officers in the proper use of deadly force is so obvious that the failure to do so can
be characterized as deliberate indifference to constitutional rights. Deliberate indifference was also found in
the sheriff’s failure to provide proper supervision and training for K- 9 teams.

In Coley v. Lucas County, Ohio (2015) a lower court and appellate court denied a police officer, a police
sergeant, and the county sheriff qualified immunity on claims of excessive force, delay of medical care, and a
claim of failure to train and supervise his employees, brought by the estate of a detainee who died at the jail.
The detainee was restrained in handcuffs and in leg restraints in the booking area of the jail and the arresting
officer pushed him against the wall, causing him to strike the wall with his head and fall to the floor without
being able to break his fall. The officer attempted to cover up the incident by submitting a false report and lied
to federal investigators following the death of the detainee. The court determined that such excessive force was
gratuitous, in violation of the Fourteenth Amendment.

The court held that a police sergeant’s continued use of a chokehold on the fully shackled and unresisting
detainee, after hearing him choke and gurgle, was objectively unreasonable, in violation of the Fourteenth
Amendment. The court also found that the sergeant’s failure to seek medical care for the detainee, who was
left unconscious in the cell, and failure to mention the use of a chokehold in his report further constituted a
violation of the detainee’s rights. Moreover, the court found the sheriff liable based on his failure to train and
supervise his employees in the use of excessive force, the use of the chokehold and injuries derived from the
force used, and the failure of the officers to provide medical care for the decedent detainee. Evidence in the
case showed that the sheriff assisted his officers in covering up their actions by making false statements to
federal investigators about his knowledge of the officers’ actions. The court found the actions of the officers
were implicitly authorized by the sheriff and he knowingly acquiesced in the unconstitutional conduct of the
offending officers. The court noted that the sheriff’s false statements to federal investigators and his direction
to officers to do the same were sufficient to support a claim that he ratified the conduct of his officers,
underscoring his liability.

In Young v. District of Columbia (2015) a pretrial detainee, who was released on the street, was unarmed
with his hands raised. He turned and was shot in the back by a D.C. Metro police officer, which resulted in a
gunshot wound. After the shooting, officers handcuffed and searched the detainee and transported him to the
hospital, where he received medical treatment while restrained. The detainee filed a § 1983 lawsuit claiming
that his Fourth Amendment rights were violated through the use of excessive force, that his Eighth
Amendment rights were violated as the officers engaged in cruel and unusual punishment by shackling him on
the ground, restraining him, and by keeping the restraints on him in the hospital, and that the chief failed to

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train the officer in the proper use of using deadly force.
The court remanded the excessive force claim to trial to determine whether the officer appropriately used

deadly force. The court granted the officer qualified immunity on restraining the detainee and keeping the
restraints secure during medical treatment as the law was not clearly established at the time of the incident. As
determined by the court, it was reasonable for the officer to keep the restraints secured during medical
treatment to prohibit the possibility of escape. The court granted qualified immunity to the chief on the claim
of failing to train the officer as the detainee failed to state a valid claim. According to the court, the detainee
failed to identify any specific policy or custom, the enforcement of which caused the detainee’s injury, or any
particular deficiency in training or supervision resulting in the officer shooting an unarmed man with his
hands raised. Since the detainee failed to show that the chief acted with constructive knowledge that his
officers would potentially violate his constitutional rights, the claim was dismissed.

In Backe, et al. v. City of Galveston, Texas, et al. (2014) an officer working security at a bar attempted to
make an arrest of a patron who was attending a wedding reception. When other family members observed the
officer making the arrest they pleaded with the officer not to do so and began to interfere with the officer. The
officer called for backup and 33 officers responded. A melee ensued, wedding patrons began pushing the
officers, and the officers responded by: striking patrons with their batons and flashlights; using pepper spray,
Tasers, and chokeholds; pulling and dragging people by the hair; kicking patrons; using hand strikes to various
portions of the body; and throwing patrons to the ground. According to the court only 12 percent of the
responding officers submitted a use of force form and many of the forms failed to fully document and report
the type of resistance and the types of force applied. Eleven plaintiffs filed a § 1983 lawsuit alleging that the
officers used excessive force, that the chief directed the officers in using excessive force through constitutional
deficient policies, that the chief failed to adequately train the officers in the use of appropriate force, and that
the chief failed to adequately investigate the incident.

The federal district court reviewed each of the four allegations. First, the court agreed with the plaintiffs that
the evidence of rampant and unreasonable use of force that night was sufficient to establish that the police
department was operating to an unofficial custom of using excessive force. The court found that the chief of
police was the official policymaker for the police department and that the policies directed the officers’
conduct. The court explained that the facts of the case presented a truly factual scenario which supported a
custom or practice of using excessive force. Second, the court agreed with the plaintiffs that officers used
excessive force and many of the officers failed to intervene to prevent acts of excessive force. Third, the court
found that although the chief directed an internal investigation of the incident, in which several officers were
disciplined, the investigation was hindered. This resulted in the incident being under- investigated as not all
the officers submitted use of force forms, which violated the department directive for filing a report. The court
determined that, although the chief had only been in the post as chief for four months when the incident
occurred, he was very aware of the constitutional implications for the use of force in a law enforcement agency
that lacked robust reporting, and thus concluded that under- reporting was the moving force behind the
plaintiffs’ constitutional rights.

Finally, the court granted summary judgment to the chief/city on the claim of failure to train the involved
officers. According to the court, all the officers had received training in accordance with the Texas
Commission on Law Enforcement Standards and Education. The court explained that compliance with state
requirements is a “factor counseling against a ‘failure to train’ finding.” Because the plaintiffs could not
specifically show how the officers’ training was inadequate, summary judgment was granted to the defendant
chief/city.

Failure to Protect

The police have a duty to exercise reasonable care toward arrestees. This duty commences at the time of arrest
and continues until release from custody. The Supreme Court, however, in DeShaney v. Winnebago County
Department of Social Services (1989) held that police generally are not liable for failure to protect individuals
from harm inflicted by third parties, but may be liable for an injury inflicted by law enforcement officials (del
Carmen, 1991). An increasing number of actions have been successful when the lawsuit has proven that there
was actual failure to protect, and when there are facts and circumstances that make the harm or injury that
occurred different from a risk faced by the general public. The plaintiff may claim that he is different from the

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public in general and that the police had knowledge of him and his situation. Training of police officers in this
area is a policy concern for administrators, because liability may attach for the city when a lawsuit is filed for
failing to protect an arrestee from himself or from actions by officers. Potential training and policy issues in
this area include equal protection concerns of racial bias under the Fourteenth Amendment, domestic violence
situations, and discrimination violations under the Americans with Disabilities Act (ADA). In Barber v. Guay
(1995) a mentally impaired arrestee prevailed in a deliberate indifference claim to training under the ADA
when he alleged that the arresting deputy denied him proper police protection and fair treatment due to his
psychological and alcohol problem. The City of Chicago was liable for failing to protect a wife from domestic
violence at the hands of her husband, who was a police officer in the department (Czajkowski v. City of
Chicago, 1993). The husband’s partner was found liable because he failed to intervene and assisted the officer
in attempting to cover up the abusive incident. It was determined that the department had a custom of failing
to take action and was deliberately indifferent to officer training.

In Wilson v. Maricopa County (2006) a prisoner was fatally assaulted by another prisoner and the county
filed for summary judgment. The court ruled that the sheriff was deliberately indifferent for failing to properly
train and supervise officers in providing a safe environment for prisoners. The court also found that the sheriff
was deliberately indifferent in fostering and knowingly encouraging a climate of condoning brutality among
the prisoners and indifference to proper supervision. According to the court, a supervisor could be found to be
deliberately indifferent to the safety of prisoners if he knew that not having an officer on the ground in the
yard posed a risk of violence among the prisoners.

In Lucia v. City of Peabody (2013) the estate of an arrestee filed a civil lawsuit against the chief of police, four
officers, and the city after he died from acute and chronic substance abuse while in protective custody. The
estate claimed the officers failed in their duty to properly care for and monitor the arrestee, failed to call a
treatment center, and the chief failed to supervise the officers properly and failed to train them. The court
granted the officers qualified immunity, holding that, at the time, a reasonable officer would not have known
that determining whether a suitable treatment facility was not available would constitute a Fourth Amendment
violation of detaining an intoxicated person, stating that such a right was not clearly established under the law.
The court also stated that the estate failed to state a claim of a failure to provide officers with training, as such
training was documented, and the estate failed to establish any failure to supervise the involved officers by
agency supervisors. A claim of false imprisonment also failed.

Emergency Vehicle Operations

Of the 10 most commonly litigated training areas, police vehicle operation is the most frequently performed
police function. The Ross study (2000) revealed that these lawsuits represent the highest awards granted to
prevailing plaintiffs. Researchers have documented the need for policy development and ongoing training in
operating the police vehicle in emergency situations (Alpert, 1997; Beckman, 1987; Falcone et al., 1994;
Gallagher, 1989; NIJ, 1998). Legal allegations that plaintiffs frequently assert include being deliberately
indifferent in training to policy concerns; making decisions to pursue or to terminate; the use of spikes,
roadblocks, and ramming; failure to use emergency equipment; improper use of the vehicle in a risky
environment; and wrongful deaths of citizens. Based on a review of more than 250 pursuit- type cases,
Kappeler (1997) found that generally one factor alone is insufficient to establish a valid claim, but that as the
number of factors increases so does the likelihood of liability.

Case rulings reveal conflicting trends in court decisions. In Frye v. Town of Akron (1991) a passenger was
killed after a high- speed pursuit involving a motorcycle. The court held that police pursuits may violate due
process and that failure to train in the mechanics of hot pursuit can be characterized as “deliberate
indifference.” In Fulkerson v. City of Lancaster (1992) the court determined that there was no “obvious need”
for specialized training in high- speed pursuits beyond what was given in the academy. The court found that a
single incident was insufficient to impose liability in a pursuit case where the city had not developed policy,
but rather allowed the officer to use his discretion whether to pursue or not (Dismukes v. Hackathorn, 1992).
According to the court, the pursuit was not objectively unreasonable and there was no evidence that the
department had a history of pursuits that resulted in damage or injury.

The Supreme Court in County of Sacramento v. Lewis (1998) established that the standard for reviewing
police actions in pursuits is “shocks the conscience.” A deputy with the Sacramento County Sheriff’s

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Department engaged in a high- speed pursuit of two youths on a motorcycle, at speeds of more than 90 miles
per hour. Smith violated the department’s policy by operating his vehicle in excess of 80 miles an hour. The
chase ended after the motorcycle tipped over and Smith skidded into it, causing the death of Lewis, a passenger
on the bike. The district court granted summary judgment to Smith and the Ninth Circuit Court of Appeals
reversed. The United States Supreme Court reviewed the case in order to determine what standard should be
applied in police pursuit cases.

Rejecting the deliberate indifference standard, the Court determined that conduct that shocks the conscience
in accordance with the Fourteenth Amendment is the proper standard to apply in police pursuit situations. The
Court reasoned that in the circumstances of a high- speed chase aimed at apprehending a suspected offender,
where unforeseen circumstances demand an instant judgment on the part of the officer who feels the pull of
competing obligations, only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the
“shocks the conscience” test. In chases in which there is no intent to harm an offender physically or to worsen
his or her legal plight there is no liability.

Since the Lewis decision the lower courts have had the opportunity to review legal actions surrounding
police pursuits and training. In failure to train claims the courts apply the Monell and Canton decisions in
determining administrative liability. Generally, the Lewis decision has made it extremely difficult for a plaintiff
to prevail in a failure to train claim as the plaintiff must first show that the named officer intended to harm the
suspect in the pursuit, which rises to a level of “shocking to the conscience.” For example, the defendants in
Philebaum v. Myers, Ridenour & City of Portland, Indiana (2006), McCoy v. City of Monticello (2005), Sanders v.
City of Union Springs et al. (2005), Herman v. City of Shannon, Mississippi (2004), and Grazier v. City of
Philadelphia (2003) were granted summary judgment. Each case involved a pursuit that ended either in an
injury or death to the suspect, with claims filed against the officer for violating constitutional rights and
against departmental supervisors for failure to train. Regardless of the jurisdiction, the courts consistently have
ruled that a plaintiff must first prove the Lewis test. The courts agree that the plaintiff must show that the
officer engaged in the pursuit with the intent to cause physical harm to the plaintiff or worsen his or her legal
plight. Failing to do so does not give rise to liability. Absent such evidence, claims of failure to train fall. The
courts consistently hold that police training must be so obviously inadequate that it amounts to deliberate
indifference to the constitutional rights of citizens and that the inadequacy was the “moving force” behind the
alleged constitutional violation. There must be a direct link between a failure to train and the alleged injury.
The courts have maintained that comprehensive policies and training should be provided for officers who
engage in pursuits. But until a plaintiff can successfully overcome the Lewis test, failure to train claims will
normally fail.

In Labar v. Alercia (2011) a police officer gave chase to a felony suspect. While driving, the suspect struck
the vehicle of Jolene Labar and she died as a result of the crash. Mr Labar filed suit against the municipality on
a claim that they implemented a policy of emergency response driving- high- speed motor vehicle pursuit and
asserted that the Palmer Township Police Department failed to train their officers with respect to high- speed
pursuits. Labar further claimed that the township: maintained a policy of failing to reprimand officers involved
in misconduct; failed to require in- service training or retraining of officers known to engage in unsafe acts,
police misconduct, or who were known to encourage or tolerate the same; and failed to require police officers
to be adequately trained in the pursuit policy. The township filed for a motion for summary judgment and the
court granted the motion.

The court held that Labar failed to demonstrate that there was an “official policy,” which administrators
implemented and enforced, that tolerated police misconduct and represented well- settled law. The court ruled
that a claim questioning the level of training or supervision of agency personnel in accordance with § 1983
requires a showing that the failure amounted to deliberate indifference to the rights of persons with whom
those employees will come into contact. The failure to train may amount to deliberate indifference where the
need for more or different training is so obvious— or inadequacy so likely— as to result in a violation of
constitutional rights. The court noted that the township indeed maintained a constitutional policy addressing
high- speed pursuits and officials had regularly provided officers with training on the policy and driving skills.
Based on these factors the court held that there was no obvious lack of training that would have resulted in a
constitutional violation.

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False Arrest/Unlawful Detention

Taking a person into custody, charging him or her with a crime, and detaining him or her is certainly a
recurring circumstance for police officers. It occurs more than 296 million times per year (BJS, 2005). False
arrest and detention can be the basis for liability under § 1983. Both are considered intentional torts and the
individual is restrained or deprived of freedom without legal justification (del Carmen, 1991). The plaintiff may
allege that the administrator failed to properly instruct officers in the laws of arrest and detention or that the
department practiced a custom of allegedly arresting and detaining people. In Clipper v. Takoma Park,
Maryland (1989) the city was found liable for inadequate training in an improper arrest coordinated by the
lieutenant who was in charge of the detective bureau and by the department’s training coordinator. The
investigating officer did not receive training materials giving typical examples of arrests properly based on
probable cause. The arrestee was mistakenly arrested for a bank robber, who was videotaped. The court held
that this evidence met the deliberate indifference standard and the plaintiff was awarded $304,355. In Tilson v.
Forrest City Police Department (1994) the city was not held liable for failing to train regarding detention of
arrestees. The arrestee was in a county jail for 14 months without being formally charged with a crime. The
mere fact that the chief knew the plaintiff had been arrested and that written procedures for conducting
criminal investigations were lacking illustrated insufficient grounds for imposing liability. In Rivas v. Freeman
(1991) the sheriff was found liable for inadequately training deputies and detention officers in the mechanics of
arrest and detention. The plaintiff sued for wrongful detention because he was misidentified as a probation
violator and detained for six days. He was awarded $100,000.

In McCollum v. Doe (2011) plaintiff McCollum filed a § 1983 claim alleging that officers from the
Philadelphia Police Department stopped him on the highway for speeding after a short pursuit. He claimed that
unidentified officers threw him to the ground, assaulted him, sprayed silicone in his mouth, rummaged
through his belongings, and threatened to kill his daughter and rape his wife if he were to say anything about
the incident. McCollum alleged that his car was towed and he was left unconscious on the side of the road. In
this lawsuit he claimed that the officers should be held liable for assaulting him and for false imprisonment. He
also asserted that the city should be held liable for failing to train, supervise, and discipline police officers,
which resulted in physical injuries and constitutional injuries.

McCollum maintained that the city had a formal policy that, through inaction, condoned and tolerated
unconstitutional conduct by its officers. He further claimed that the city was deliberately indifferent to the
patterns, practices, customs, and need for more, or different, training and supervision in the areas of abuse of
police powers, the failure of police to follow policies and procedures regarding probable cause for arrest, the
use of physical abuse against detainees, the identification of officers who engage in physical abuse, and the
failure of officers to deter fellow officers from committing unlawful conduct. The city moved for summary
judgment arguing that McCollum failed to provide evidence that the city engaged in a pattern or practice that
officers routinely violated the constitutional rights of citizens; neither did he provide evidence that the city’s
policy or custom caused his harm nor evidence that the city failed to provide training to their officers
amounting to deliberate indifference.

The court agreed with the city ruling that McCollum failed to set forth any specific facts showing a genuine
issue for trial. The court found no evidence presented by McCollum showing that the city failed to train its
officers regarding a requirement that officers intercede when other officers engage in constitutional violations.
Absent a showing that the city maintained an official policy and practice condoning constitutional violations
by police officers, the court granted the city’s motion.

In Battiste v. Sheriff of Broward County (2008) the plaintiff challenged whether a police chief provided
adequate training in forming probable cause sufficient to make valid arrests. Union activists were conducting
an allegedly peaceful protest in downtown Miami, Florida. They claimed that deputies from a county sheriff’s
department detained them without probable cause while being supervised by the local police department. The
plaintiffs alleged that the chief failed to adequately train the deputies and that a report established that he had
notice of prior “widespread” unjustified arrests by police during protests. The court ruled that the chief was
entitled to qualified immunity based on his role as a supervisor. Further, the court ruled that it found no prior
case law establishing that a police chief, based on alleged past unjustified arrests by his officers, had an
obligation to conduct training for “borrowed” officers regarding when to make arrests.

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In Wilson v. Montano (2013) a detainee in a county detention center was held for 11 days without charges
being filed and without a probable cause hearing being conducted. The detainee filed a § 1983 claim against the
sheriff and several deputies alleging that he was unlawfully detained and that his right to a prompt probable
cause hearing was violated. The detainee also alleged that the sheriff failed to properly train the deputies and
promulgated unconstitutional policies and customs, which all caused his rights to be violated. The district court
denied the defendant’s motion for summary judgment and the appellate court agreed with the detainee. The
court held that the deputies were personally involved in violating the detainee’s Fourth Amendment right to a
prompt probable cause hearing. The court further ruled that the sheriff established a policy and custom that led
to the detainee’s prolonged detention without a probable cause hearing, that the sheriff acted with the requisite
mental state which allowed the deputies to arrest individuals and wait before filing charges or never filing
charges, that the sheriff was deliberately indifferent to ongoing constitutional violations occurring under his
supervision and due to his failure to adequately train the deputies, and that such actions constituted a policy
and custom which amounted to the moving force behind the detainee’s illegal detention.

Medical Care

The Supreme Court has ruled that the police do not specifically owe a duty of medical care to an individual
citizen, absent a “special relationship” (City of Revere v. Massachusetts General Hospital, 1983). The due process
clause of the Fourteenth Amendment requires a government agency to provide medical care to people who
have been injured while being apprehended by the police. This is frequently a major allegation in excessive
force claims, pursuits, arrests of intoxicated or mentally impaired individuals, and injuries sustained while in
detention. The plaintiff will likely assert that the government entity was deliberately indifferent to the needs of
the arrestee and failed to properly train officers in summoning medical care, observing symptoms of medical or
psychological distress, and how to properly respond to such situations.

The Ross study (2000) revealed the third highest award granted to plaintiffs in this category. In Burkhart v.
Washington Metro Area Transit Authority (1996) the plaintiff was awarded $109,000 in damages, based on a
claim that the transit authority inadequately trained officers in how to respond to disabled patrons, particularly
the hearing impaired. The court in Vine v. County of Ingham (1995) held that the police agencies were not
deliberately indifferent to the medical needs of arrestees. An arrestee who was under the influence of methyl
alcohol died while in police custody. At booking in the city lockup, the intake officer placed the detainee in an
observation cell because he was belligerent and had attempted suicide during past confinements. The detainee
passed out on the floor and was visually checked by officers periodically. Nearly six hours later officers noticed
he was unresponsive and found he had choked on his mucus vomit. He was transported to the hospital and
later died. The court determined that because deputies had received academy training and in- service training,
despite not rendering medical treatment at booking, the sheriff was immune from liability.

The court underscored the fact that the police agency had provided minimal training in responding to the
medical needs of arrestees, such as first aid and when to summon medical assistance. The officers were not
required to have detailed training in medical treatment.

In Thomas v. Sheahan (2007) the special administrator of the estate of an individual who died at the jail from
meningitis and pneumonia filed a lawsuit against the county, the sheriff, the president of the county board,
correctional officers, and a medical technician. The special administrator asserted that jail officials violated the
prisoner’s rights on theories of wrongful death, survival action, and intentional infliction of emotional distress.
The court rejected the county’s motion for summary judgment, holding that the prisoner’s illness was an
objectively serious medical need and the medical technician and correctional officials were aware of his serious
medical symptoms. The court found that the county was deliberately indifferent to its widespread practice of
failing to train its employees on how to handle prisoner medical requests.

Arrestee/Detainee Suicide

Suicides and attempted suicides of arrestees present a significant problem for criminal justice practitioners.
There has been a proliferation of cases brought against agencies and millions of dollars awarded to plaintiffs
during the past 25 years. These actions normally allege that the agency and its employees failed to take steps to
prevent a suicide attempt or a suicide, and allegations of inadequate training are typical of such cases. Under §

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1983, plaintiffs allege that the city violated the constitutional rights of the person to be free from self- injury,
failure to protect, and frequently for deficient building and policies. In Farmer v. Brennan (1994) the Supreme
Court held that deliberate indifference must be established in prisoner safety and health cases, based on a
showing that the official was subjectively aware of the risk and made no effort to reduce it. This still places
some responsibility on administrators to ensure minimal safeguards when placing arrestees in detention. Legal
standards require that policies and training be reasonably adequate to address the particular subject or
problem. The courts in Wallace v. Estate of Davis (1994, $1.4 million awarded), Hare v. City of Corinth,
Mississippi (1994), Bragado v. City of Zion Police Department (1993), Elliot v. Chesire County (1991), Burns v.
City of Galveston (1990), and Simmons v. City of Philadelphia (1991) found the government entity to be
deliberately indifferent to training methods, screening procedures, and the protection of suicidal arrestees. Each
case dealt with deficiencies in minimum training guidelines and policies surrounding the foreseeable needs of
arrestees exhibiting intoxication, mental impairment, and the stress associated with detention.

In Harvey v. County of Ward (2005) an arrestee committed suicide in the jail after he accumulated some of
his medications. The decedent’s estate claimed that jail officers had information (provided by the detainee’s
wife) that he was storing his medication so that he could later commit suicide. The family also filed a claim
against the sheriff for failing to train his officers and implement policies that would lessen the likelihood of
detainee suicide.

The court granted summary judgment for the sheriff and the officers in the absence of any evidence that any
of them were aware of a conversation with the detainee’s wife regarding his medication. The court also found
that the sheriff’s suicide prevention policy was reasonable and that the county was not deliberately indifferent
to training its officers in suicide awareness. The fact that the policy had not been updated recently, and that the
jail was not accredited by the American Correctional Association, did not alter the result when the policy
contained a detailed listing of factors for the identification of possibly suicidal prisoners, procedures for
screening detainees, and required that officers receive ongoing training in suicide intervention.

Compare, however, Howard v. City of Atmore (2004). A detainee committed suicide in a city lockup and his
sister filed a civil lawsuit claiming that the officer failed to follow his training and policy in making security
checks. The rules and policies of the facility required officers to make security checks twice an hour. Evidence
revealed that the officer had not followed his training and policy, which led to the detainee’s death. The court
ruled that the officer was not entitled to summary judgment and liability attached. The chief of police,
however, was granted immunity by the court as he had developed and implemented procedures, as well as
training on the procedures concerning the identification and handling of potentially suicidal detainees.

In Branton v. City of Moss Point (2007) the court examined the issue of officer training and detainee suicide.
The decedent was arrested for drunk driving and, during booking, an officer asked whether he had attempted
suicide or was thinking about it now, and the decedent responded “no.” The decedent was placed in a cell for
combative prisoners with a bed sheet and committed suicide two hours later. The decedent’s estate filed a §
1983 lawsuit alleging that the city should be held liable for failing to properly train officers in prisoner
screening, failing to train officers concerning suicidal prisoners, and failing to furnish medical care to prisoners
in need. The court denied summary judgment for the city, holding that there was sufficient evidence to show
that officers were improperly trained and that there was evidence that the booking officer possessed actual
knowledge that the detainee exhibited a substantial risk of suicide.

In Mombourquette v. Amundson (2007) the court determined that the county was deliberately indifferent to
training detention officers regarding suicide prevention strategies. The court found an affirmative link between
the failings in the detention facility and the failure to prevent the plaintiff from committing suicide. First, the
court held that there was a lack of training and a lack of clear delineation of authority with respect to assessing
the risks associated with suicide. Second, the court ruled that officers were inadequately trained in
communicating a detainee’s medical needs with other officers working in the facility, stating that effective
communication was sorely lacking. According to the court, these failures in adequate training amounted to
deliberate indifference to the risk that the plaintiff would seriously harm himself.

In Wilson v. Taylor (2009) the decedent prisoner was housed in solitary confinement and hanged himself. His
estate filed a § 1983 lawsuit against correctional officials claiming a failure to protect, a failure to train officers
on measures to prevent suicide, wrongful death claims, and unconstitutional policies and procedures regarding
supervising prisoners in their cells. Correctional officials filed a motion for summary judgment and the federal

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district court denied it. The court found that the prisoner had attempted suicide previously during his
confinement and that the officials were deliberately indifferent to taking steps to prevent it once they became
aware of his behaviors. The court determined that correctional officials maintained unconstitutional policies
and customs underscoring the failure to train claim. Further, the court determined that officers acted recklessly
and with wanton indifference when several officers threw the prisoner against a bench by grabbing his throat
and threatening to harm him further. The court held that correctional officials and their officers acted with
outrageous disregard and with deliberate indifference to the prisoner’s rights and to the rights of other
prisoners, supporting the § 1983 claims.

In Shaidnagle v. Adams County, Miss. (2015) a physician discharged a detainee from the hospital, cleared
him for incarceration at the jail, and advised him to comply by taking his medication as prescribed. The
detainee was booked into the jail without problem and placed in a holding cell. The detainee did not exhibit
any signs of suicide, ate a meal, received his medication, received a visit, and was allowed phone calls,
consistent with jail procedures. On a regular, scheduled cell check in accordance with jail policy and the
department’s training, an officer discovered the detainee had committed suicide. The estate of the detainee
filed a federal civil suit claiming that the officers failed to place the detainee on suicide watch and failed to
monitor him on a continuous watch. The estate also alleged that the sheriff implemented numerous
unconstitutional policies and was deliberately indifferent by failing to provide training to the jail officers in
suicide prevention. The defendant officers and sheriff submitted a motion for summary judgment and the court
granted it. The court ruled that the sheriff could not be held liable on a theory of supervisory liability for
failure to train or supervise where the estate did not show that the training was inadequate, and that the
policies in place to determine whether the detainee was a suicide risk were not the moving force behind a
constitutional violation. The court concluded that the correct legal standard was not whether jail officers knew
or should have known, but whether they had gained actual knowledge of the substantial risk of suicide and
responded with deliberate indifference

Search and Seizure

Police officers frequently search and seize citizens’ vehicles, property, dwellings, and businesses, as well as
their persons. Plaintiffs alleging that the police improperly conducted a search and improperly seized property
are more likely to file a lawsuit under § 1983 because the actions pertain to a violation of Fourth Amendment
rights. Police administrators must ensure that officers routinely receive updated training that is commensurate
with the law. A $6.1 million judgment was granted to the plaintiff in Doe v. Calumet City (1990) because the
officers strip-searched females during traffic and misdemeanor arrests without probable cause. The city had
adopted a policy that prohibited such searches, but failed to distribute it to officers and failed to conduct
training explaining the policy. In Hufford v. Rodgers (1990) a sheriff was held liable for inadequate training and
supervision of a deputy who seized a child from a mother pursuant to papers supplied by her former husband
erroneously implying that he had a right to the child. The City of North Reading, Massachusetts, was held not
deliberately indifferent to the rights of the plaintiff during a personal search in Swain v. Spinney (1997). During
booking at the lockup the plaintiff was strip- searched for possible drug possession and claimed emotional
trauma after her eventual release. The city produced a policy and training manual developed by a statewide
risk management group specifying when strip searches are warranted. The city had also provided training to
officers. The plaintiff in Wall v. Gwinnett County (1993) settled out of court for $9.8 million relating to six site
searches of his business and residence. More than 100 boxes of financial records were seized through the
searches. The suit claimed that the search warrants were obtained by misrepresentation and that the searches
were intended to damage the plain-tiff’s business. Allegations of inadequate training/supervision and
emotional distress emerged.

The legality of a search poses critical concerns for police officers, and new cases are frequently decided. Like
many other tasks, this requires administrators to conduct ongoing training. A case in point is the Supreme
Court’s decision in Wyoming v. Houghton (1999), which involved the search of a motor vehicle passenger’s
purse. The Court analyzed the situation as if the purse were a container in the car. The Court determined that
when officers have probable cause to search a car they may inspect a passenger’s belongings found in the car if
the container could conceal the object of the search.

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Officer as Plaintiff

An emerging area of litigation is police officers as plaintiffs. They are filing claims against citizens for injuries
or wrongs committed against them and the department for failing to train. In Carlson v. City of Tonawanda
(1995) the deceased officer’s estate prevailed when the deputy was fatally shot attempting to arrest a suspect.
The estate sued the city on the basis of deficient policies and regulations and inadequate training policies,
which created additional risks to those ordinarily faced by officers arresting a suspect. The court ruled in
Darrow v. Schumacher (1993) that the mere failure to adopt a special training policy for special events could
not be the basis of liability when there was no showing that any failure was the direct cause of an injury. The
court held in McCormick v. City of New York (1991) that the city’s failure to provide officers with a newer type
of vest could not make the city liable for the shooting death of the officer, nor could a claim of failure to train
be valid. In Collins v. City of Harker Heights, Texas (1992) the court ruled that federal civil rights law does not
provide a remedy for a municipal employee fatally injured during employment because of the city’s customary
failure to train or warn its employees to know about hazards in the workplace.

Over the years, academy and in- service training instructors have moved to using more scenario- based
training in response to the Supreme Court’s decisions for criminal justice agencies to provide realistic training.
As such, the courts have begun accepting claims that allege an unsafe training environment. In Cole v. State of
Louisiana Department of Public Safety and Corrections (2002) the court found in favor of a plaintiff
correctional officer who sustained injuries requiring extensive hospitalization and treatment during an in-
service scenario- based training exercise portraying a prison disturbance. The simulation training was designed
for officers to role- play rioting prisoners so that the tactical unit of the prison could practice using techniques,
equipment, and tactics to quell and control such a disturbance in the future. The simulation training called for
five exercises and the morning exercises were conducted without incident. In the morning exercises, protective
gear was worn by all personnel and those playing the role of officers used batons wrapped in foam. In the
afternoon, Cole and other officers assumed the role of angry prisoners. The officers role- playing as “prisoners”
wore helmets and the “officers” used unpadded batons. At trial, Cole testified that he had never participated in
this type of role- play exercise in his previous seven years of employment and since being a member of the
tactical unit. He stated that the training exercise turned into a “free for all.” He reported that someone grabbed
him and started hitting him on his left arm with full force several times. He yelled out “red,” the code word
which was supposed to stop the activity, but he continued to be struck with the unpadded batons. At some
point the exercise was stopped and Cole was transported to a hospital. He sustained numerous injuries from
being struck with the baton six times and being tackled to the ground, including a serious head injury resulting
in brain damage and general injuries to his neck, left shoulder, arm, and back.

Cole filed a lawsuit claiming that his injuries were sustained from an intentional tort of battery resulting
from an unsafe training exercise conducted by his employer. At trial, a video was shown of the simulated
training exercise. Photographs of Cole’s injuries were also shown. The video showed that unpadded batons
were used and that the helmet Cole wore came off while he was being struck. Administrators in charge of the
training testified that tactical training is very physical, that officers could reasonably expect to get scuffed up
and might incur bruises, but they would not sustain significant injuries. They also testified that they “try to
avoid any significant injuries to the extent they can, but it is just a physical type of training.”

After weighing the evidence and testimony, the trial court found that Cole had established that the
Department of Corrections was liable for his injuries and awarded him $1.8 million, including $675,000 in
general damages, $175,000 in future medical damages, $914,390 in lost wages, and $105,000 for loss of
consortium to his family. The department appealed the case and the Louisiana Supreme Court upheld the
finding. The court held that striking someone with an unpadded baton is harmful or offensive conduct
intending harm to result from such contact, and that Cole met the elements of proving an intentional tort.
Further, the Court ruled that there was overwhelming evidence that the force used in the training was
“unnecessary and unanticipated” in order to complete the goals of the training exercise. The Court upheld the
damages awarded by the lower courts but reduced a portion of the medical compensation amount, without
specification.

In Hayes v. University of Southern Mississippi and Ted Socha (2003) the court took occasion to assess the
safety of training at a police academy. Hayes attended academy training in the Police Corps Academy at the

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University of Mississippi. The program was started by the United States Congress and gave oversight to the
Department of Justice. During the fourth day of training during a 22- week course, Hayes participated in a
mandated realistic, scenario- based training exercise that used various safety precautions. The exercise was
performed in the gym on padded mats and the role- players as well as the training cadet officers wore
protective gear, including headgear, mouthpieces, knee and leg protection, and groin protectors. Further, there
were four academy personnel on site, including a safety instructor who would oversee the exercise and stop it
at the end of two minutes or if a problem occurred. The goal of the exercise was to assess the candidate’s
response to an unexpected physical reaction from a suspect whom the candidate was questioning about
suspicious behavior. The role- player was trained in what to do, what to say, and how far to take the scenario.
During the exercise, Hayes was forced to the mat and rolled on her knee, sustaining an injury. The safety
instructor immediately stopped the training, allowed Hayes to catch her breath, and escorted her off the mat.
The instructor provided remedial medical attention to Hayes and then transported her to the hospital, where
she received treatment for an injured tendon in her knee. She returned to the academy and a month later,
while completing a mandated test, was observed to be cheating by an instructor. After an investigation she was
allowed to submit a letter of resignation. She filed a lawsuit claiming that the academy was indifferent in
planning and operating an unsafe training exercise with unsafe conditions, assault, and delayed medical care,
which directly led to her knee injuries. She requested payment of damages, compensation of medical bills
which amounted to $43,000, and reinstatement into the academy.

At trial, academy personnel testified that the training scenario was planned out in advance and safety
measures were implemented. As soon as an injury was observed the exercise was discontinued, and medical
care was provided at the academy and at the hospital. The academy paid for the medical treatment at the
hospital. An expert witness for the academy testified that the training exercise was properly planned and
performed like other scenario- based training used across the United States and agreed that proper safety
measures were in place and followed by academy instructors. The court agreed with the defendants and found
the purpose of the training exercise was appropriate for the circumstances and in accordance with the Police
Corps Academies and that the exercise was conducted with the degree of care ordinarily and customarily
exercised in its performance.

The issue of an instructor providing safe and proper training was addressed in Hamilton v. Martinelli &
Associates (2004). The plaintiff was a probation officer and her duties required her to restrain violent youthful
offenders and that she receive commensurate subject control training. She was required to wear a uniform and
carry pepper spray. During mandatory training, certified by the State Board of Corrections Standards and
Training Commission, she sustained injuries to her neck and back while performing a physical control
technique. She sued the instructor for negligence and an intentional tort. As a result of the injuries she was not
able to perform the job as a probation officer or police officer.

The lower court ruled against Hamilton, concluding that the doctrine of primary assumption of the risk
barred her claim, and granted summary judgment to the instructor. She appealed and the appellate court
affirmed. The appellate court concluded that Hamilton assumed the risk of her injuries in the training course.
The court dismissed the fact that the instructor failed to provide a written disclaimer warning or consent form
to students at the beginning of the training. The instructor did ask all participants to identify prior injuries and
sensitive areas of their bodies by placing silver tape on the identified areas before the class started. The
instructor also demonstrated the techniques to the participants before they practiced them. The court noted
that this certified training enabled Hamilton to perform her employment duties and that, by participating in an
employer- required training course, she assumed the risk that she would be injured while attending training to
restrain a violent youthful offender. The court finally concluded that she failed to offer evidence that the
instructor exceeded the boundaries of the normal risks associated with this type of training.

Issues of whether an administrator failed to provide training and created a hostile work environment were
asserted in Hawkins v. County of Oneida, New York (2007). A black plaintiff officer alleged that he was not
properly trained in firearms necessary to function as a gun tower officer and that he was not provided
emergency response team training, which amounted to a pretext for race discrimination and failure to provide
training constituted a Title VII rights violation. He also asserted that he was wrongfully terminated from his
position. The court granted summary judgment for the county on the failure to train claims because it was
determined that the officer, who was a probationary employee, was ineligible for such training. Probationary

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employees were not assigned to the gun towers or assigned to emergency team assignments. Further, the court
denied summary judgment on the officer’s claims of a hostile work environment. The court found that the
county permitted a widespread custom of race discrimination within the sheriff’s department, which included
persistent intimidation, racist and racially charged remarks, ridicule, insults, and discriminatory conduct by
officers and supervisors sufficient to show that an abusive and hostile work environment was tolerated, and
violated the officer’s rights.

In Hennagir v. Department of Corrections (2009) a health care worker for the department filed a legal claim
alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act in
connection with the department’s refusal to allow the employee to continue in her position without completing
the required physical safety training. The appellate court affirmed summary judgment of the lower court in
favor of the Department of Corrections. The court concluded that successful completion of the required
training was an “essential job function” for the employee, and that allowing the employee to continue with
identical job duties by eliminating the essential job function of completion of the required physical safety
training was not a “reasonable accommodation.” The court reasoned that the department required all
employees who had prisoner contact to complete the training and that the safety training was an essential job
function. The court held that the potential consequences of a prisoner attacking any employee were incredibly
severe and such training was designed for employee protection.

In Michelbrink v. Washington State Patrol (2014) a trooper brought a training injury claim in state court
against the department, alleging deliberate intentional infliction of certain injury from being shot with a Taser
in the probe mode during training. Exposure to the Taser can cause immediate temporary pain, discomfort, and
incapacitation. Later the trooper was examined by a physician who determined that the trooper sustained a
fracture to his vertebrae and a bulged disc. The state district court denied summary judgment of the defendant
department and the case proceeded to trial. The court noted that the manufacturer’s warning and the
department’s training instructor recognized that Taser probes can cause wounds and was sufficient evidence to
support the trooper’s claims of sustaining an injury during training. The court found that the evidence
submitted could be interpreted as showing that the employer knew that the mandatory Taser training would
cause the injuries of the probes inflicting wounds, yet disregarded this by still requiring the training.

Emerging Topics

Case analysis reveals additional areas that appear to be emerging as training concerns for administrators.
Police officers are frequently asked to respond or to intervene with individuals suffering from alcohol and drug
dependence or mental illness. A litigation trend has emerged as plaintiffs or estates of deceased individuals
assert that the police responded improperly due to policy and training deficiencies. Intervention with this
special- needs population can heighten the liability risk for the officer and the local government. In Young v.
City of Atlanta (1995) the court found the city liable for inadequately training officers in the city lockup to
recognize arrestees with mental problems and dispense prescribed medication during detention. In Russo v.
City of Cincinnati (1992) the city was held liable for failing to train officers in how to respond to “disturbed
individuals.” Officers shot and killed a schizophrenic man who was in possession of two knives when he
charged at them. An investigation revealed that the training of new and in- service officers was virtually non-
existent regarding the handling of mentally disturbed individuals. The court held the chief liable in Roy v.
Inhabitants of Lewiston (1994) on the grounds that he failed to adequately train officers in non- lethal
alternatives for subduing dangerous but intoxicated persons.

Issues of custodial deaths after a violent struggle and restraint with individuals under the influence of a
chemical substance or suffering from mental impairment are emerging as a training concern, as the courts have
recognized that these interventions occur with some frequency for police officers (Brown v. Gray, 2000). In the
cases of Cruz v. City of Laramie, Wyoming (2001), Gutierrez v. City of San Antonio et al. (1998), Kinneer v. Gall
(1996), Animashaun v. O’Donnell (1995), and Elmes v. Hart (1994) officers were forced to restrain highly
combative individuals who were under high levels of intoxicants or were exhibiting signs of psychosis. After
restraint the subject suddenly died in police custody. The government entities were all found liable for
inadequate policies and training in directing officers in how to respond to, restrain, and provide medical care to
arrestees. Conversely, no liability attached in Harris v. District of Columbia (1991), Estate of Phillips v. City of
Milwaukee (1996), Cottrell v. Caldwell (1996), Melendez v. Howard County Government (1997), Guseman v.

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Martinez (1998), Young v. City of Mount Ranier (2001), and Jones v. City of Cincinnati (2012) for claims of
inadequate policy or training in the restraint of intoxicated or mentally impaired individuals. All of these
entities had provided policy direction and training for their officers in how to properly intervene and control
such persons.

In Lewis v. Board of Sedgwick County Commissioners (2001) a detainee brought an action against the county
alleging that jail officers used excessive force against him and that the county failed to adequately train its
officers. The detainee became disruptive and detention officers used pressure point control tactics to control
and subdue him, and then secured him in a restraint chair. The detainee alleged that such use of force violated
his due process rights. A jury returned a verdict in favor of the detainee and awarded him $500,000. The county
requested a new trial or judgment as a matter of law. The court agreed and found that there was no evidence
that the officers used excessive force or that the county was deliberately indifferent to the training needs of
their officers. The court held that the county provided training on use- of- force techniques at the correctional
academy and on the job. The county provided a training manual and policies outlining their force techniques
and under what circumstances they authorized these techniques. The court noted that the county had
encountered only 22 complaints of excessive force in its jail from approximately 90,000 detainees who were
admitted into the jail.

Contrast, however, the decision in Swans v. City of Lansing (1998). After assaulting an arresting officer and
assaulting a sergeant in the detention facility, a violent schizophrenic arrestee was “maximally” restrained and
placed in a cell for observation. The arrestee unexpectedly died in custody. The estate filed suit and claimed a
failure on the part of the police chief to train officers in the proper use of restraints. The jury found in favor of
the plaintiff. The judge noted a policy and custom of using maximum restraint and that the officers were not
trained regarding the manufacturers’ warnings about the dangers of using the restraint system. The estate was
awarded $12.9 million and the city later settled for $10 million. This area and the many variables associated
with it— such as issues of force, restraints, responding to special- needs populations, medical/psychological
care, and transportation concerns— suggest considerations for training and potential policy revision.

An emerging trend in failure to train claims directed at criminal justice agencies is allegations that question
how officers have been trained to respond to the mentally impaired. Police response to the mentally ill has
been an ongoing complex societal issue since the 1970s, due to the closing of many mental health facilities and
the increased usage of antipsychotic medications. In some communities, police contact with the mentally
impaired may be increasing, necessitating varying response strategies and training. Plaintiffs’ attorneys have
begun to bring § 1983 actions against police departments based on the Americans with Disabilities Act (ADA,
1990). Title II § 12132 of the ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded, or be subjected to discrimination by any such entity.” In passing the Act,
Congress’s main purpose was to eliminate discrimination against individuals with disabilities. The Act applies
to governmental entities such as criminal justice agencies, and it guarantees disabled persons full access to all
of the “services, programs, or activities of a public entity.” The Act applies to “all” core functions of
government, including the lawful exercise of police powers, which entails the proper use of force by officers
acting under color of law. The ADA is a remedial statute, designed to eliminate discrimination against the
disabled in all facets of society. The question emerges as to whether police administrators have enacted policies
and training that prepare their officers to respond to the mentally impaired or other disabled persons in
accordance with the ADA.

This question was addressed in Schorr v. Borough of Lemoyne, Pennsylvania (2003). Schorr had been
diagnosed with bipolar disorder. His condition deteriorated and his family was granted a request for an
involuntary commitment order under the Pennsylvania Mental Health Procedures Act. A crisis intervention
worker of the hospital issued the order and requested that the police assist in executing the commitment order.
Two officers responded, placed him in custody, and transported him to the hospital. He was placed in a “high
security room” to wait for an evaluation. He escaped from the hospital when a crisis intervention worker
entered the room. Schorr fled to his apartment and, at the request of the family, two officers responded. A
violent confrontation occurred and Schorr was shot and killed by one of the responding officers. The family
filed a § 1983 lawsuit, claiming excessive force in violation of the Fourth Amendment. They also filed
allegations of unconstitutional policies and procedures for dealing with mentally ill persons and failing to train
officers to properly respond to the mentally ill under the provisions of the ADA. The district court granted

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judgment in favor of the plaintiffs. The court reasoned that while the ADA does not apply to “on the street
exigent circumstances decisions” facing the safety of officers or others, it does apply to claims of failure to
train. The court ruled that the ADA applies in cases in which the agency failed to properly train its officers in
properly responding to situations involving the mentally impaired. The court determined that non- compliance
with the requirements of the ADA occurred well before the encounter with Schorr. Such a failure occurred
when the policymakers of the department failed to institute policies to accommodate disabled individuals such
as Schorr by giving officers the tools and resources to handle the situation peacefully.

While not binding on other federal court jurisdictions, this decision is instructive. In light of the Schorr
decision, police administrators should review their procedures, revise them accordingly, and provide their
officers with appropriate training for when interacting with disabled persons. Persons with disabilities can
have a number of conditions and such procedures should be established to properly address the requirements.
In Miami-Dade County v. Walker (2002) the county successfully defended such a claim. Officers attempted to
arrest Walker, who had been diagnosed with schizophrenia. Walker was seriously injured in a violent struggle
with the officers and the family filed a § 1983 lawsuit alleging that the county failed to train its officers. The
court granted summary judgment to the county, holding that it did provide training for its officers as outlined
in its policies and in a training document titled How to Handle the Mentally Ill. The court concluded that the
county was not deliberately indifferent to the rights of the mentally ill.

Claims for failing to properly train police officers in properly responding to the mentally impaired were
lodged against the chief in Estate of Sowards v City of Trenton (2005). Neighbors of Sowards saw him threaten
another man with a knife and called the police. Sowards had been diagnosed with paranoid schizophrenia but
the responding officers were unaware of this fact. After speaking with the victim, two officers went to
Sowards’ apartment door but he refused to open it. He began yelling and cursing the officers, informing them
that he had a surprise for them. The officers summoned backup and a corporal and other officers responded.
Unable to persuade Sowards to exit the apartment after some time, the corporal decided to use force. The
corporal did not have a warrant, nor did he know that the occupant in the apartment was indeed Sowards or
whether he possessed a weapon. The officers kicked the door and dislodged it about a foot. The officers
observed the barrel of a gun pointed at them and one officer yelled “gun.” The officers dived for cover and
called for an ambulance. Simultaneously one officer and then the corporal began firing at Sowards through the
door. Other officers began firing, with 39 rounds fired in total. The Special Response Team also responded and
the team entered the apartment, where they found Sowards dead on the floor. An investigation was performed
and it was discovered that Sowards had not fired any rounds.

The estate filed a § 1983 lawsuit under the Fourth and Fourteenth Amendments, claiming excessive force,
entering the apartment without a warrant, and also sued the city for failing to adequately train the officers on
handling a barricaded gunman/hostage situation and failing to train officers to properly respond to the
mentally impaired. The district court granted summary judgment and the Sixth Circuit Court of Appeals
affirmed. The appellate court concluded that the officers’ use of force was consistent with criteria set forth in
the Graham decision and that entry into the apartment was necessary, given the totality of circumstances,
despite the outcome and that Sowards suffered from a mental illness. The court ruled that the training of the
officers was not the proximate cause of the shooting or the entry into the apartment, and summary judgment
was also granted on claims of failure to train in responding to persons with a mental illness, as the officers had
received such training.

Claims of failing to train officers regarding handling mentally ill individuals and ADA issues emerged in
Wolfanger v. Laurel County, Kentucky (2008). A deputy used a control technique during the arrest of a
mentally ill person and he sustained minor injuries. The plaintiff filed a lawsuit alleging excessive force and his
expert opined that the county was deliberately indifferent for failing to provide deputies with specialized
training in using force when responding to mentally ill or suicidal persons. The court rejected the argument,
holding that a plaintiff’s allegations of inadequate training will not activate a § 1983 claim unless the situation
causing the injury is recurring, such that a court may impute prior knowledge and deliberate indifference. In
this case the plaintiff could not show evidence that similar circumstances had occurred previously, let alone
occurred with frequency. The court also noted that the plaintiff failed to show that the arresting deputy had a
history of using excessive force against mentally ill persons.

Similarly, in Morrison v. Board of Trustees of Green Township (2007) the court granted summary judgment

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to officers on a claim that supervisors failed to provide specialized training in using force with mentally ill
persons. The plaintiff argued that officers were not trained to avoid unnecessary physical force during such
encounters, particularly when the contact resulted in an injury. The court held that the plaintiff failed to
present any evidence that showed a history of constitutional violations or an obvious likelihood that such
violations were likely to occur absent better training. Thus the court ruled that the plaintiff failed to
demonstrate that the county consciously chose not to provide adequate training, amounting to deliberate
indifference.

Conversely, in Estate of Harvey v. Jones (2006) summary judgment was denied by the court when two
officers testified that they never received any training on how to interact with mentally disturbed persons or
persons under the influence of drugs. One of the officers stated that he came into contact with “a lot” of
mentally ill people on the streets. The plaintiff also submitted information that the city failed to train officers
in a prior incident involving a mentally ill person who died in custody, which had occurred 10 years earlier.
The court determined that such evidence constituted deliberate indifference because the likelihood that an
officer would contact a mentally ill person required necessary training.

Since 2000 TASER International (now Axon Enterprise, Inc.) has sold 950,000 Tasers and they are used in
18,000 law enforcement agencies, private security, and the military— as well as in 107 countries (Tuttle, 2018).
Tuttle reports that there have been about 3,624,000 field applications and about 2,389,377 applications in the
training of officers, for a total of about 6,013,377 applications. Tuttle also reports that field applications of the
Taser have assisted in reducing suspect injuries by two- thirds, reduced officer injuries, reduced workman
compensation claims, reduced the need for escalation of the use of force in arrest situations, and overall have
reduced citizen complaints.

As the device has been employed numerous times in the field, questions have emerged about the liability for
failure to train on a specific piece of equipment (Scarry, 2011) and whether officers have been properly trained
to apply the Taser. In LeBlanc v. City of Los Angeles (2006) an officer contacted a narcotically intoxicated
suspect who resisted arrest, and applied the Taser. The person filed a legal action claiming that failure to train
on the proper use of the Taser with intoxicated persons violated his constitutional rights. Testimony revealed
that agency training materials on the use of the Taser provided no guidance on how and whether the Taser
should be used on intoxicated persons. The court ruled in favor of the plaintiff, holding that the failure to
instruct officers on Taser use against intoxicated persons amounted to deliberate indifference and a
constitutional violation. The court further held that the city was liable for failing to supervise or audit Taser
use by officers. The court’s decision was influenced by an officer’s testimony that he would respond in the
same way in the future if confronted with similar resistance and was not reprimanded for such conduct, which
amounted to deliberate indifference in the view of the court.

In Ellis v. Country Club Hills (2012) officers responded to a 911 call that Ellis’s stepfather was beating his
mother. On location the officers learned that Mrs Ellis was suffering a sickle- cell attack, had not been taking
her medication, and refused the officers’ offer to provide her with medical assistance. The officers were asked
to leave but they informed Mr Ellis that an ambulance had been summoned.

Mr Ellis claimed in a § 1983 lawsuit that the officers activated the Taser several times and it struck him on
the bicep. Ellis alleged that the officers continued to deploy the Taser while he lay on the ground and then the
officers struck him several times with a collapsible baton on his arm, back, legs, shoulder, neck, and the back of
his head. Ellis further claimed that the officers carried him out of the bedroom, ran his head into a wall, and
kicked him in the groin and in the head several times. He claimed that the officers used excessive force and
that the city failed to train the officers in the proper use of the Taser and force techniques.

The training lieutenant of the department testified that he was a certified Taser instructor; provided eight
hours of training for officers who were assigned the Taser, including drills and discussions on fact patterns on
when to deploy the Taser; and administered a 25- question written examination to each officer after the
training. Further, the lieutenant testified that he instructed officers to announce the use of the Taser prior to
using it and that the department, by policy, followed a use of force continuum. The city had adopted a policy
that all officers receive training in the use of the Taser and other force measures annually. The named officers
in the lawsuit testified that they indeed received training in the use of the Taser, the policy, and the continuum,
consistent with the lieutenant’s testimony. The city filed a motion for summary judgment, asserting that Ellis
could not demonstrate that the officers’ use of force was excessive and he failed to show a failure to train

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officers in the proper use of the Taser.
The court granted summary judgment for the city. The court opined that Ellis failed to demonstrate how the

city’s training violated his constitutional rights and failed to show how the city’s training program was
deficient. The court also opined that the focus must be on adequacy of the training program in relation to the
tasks officers must perform. Further, the court ruled that there was no evidence to demonstrate that the city
maintained an inadequate training program, but contrarily stated that a system of training was implemented.

In Soto v. Gaudette (2015) an officer attempted to stop a motorist who drove his vehicle without using his
headlights and the incident resulted in a pursuit. During the pursuit the driver threw something outside of the
vehicle, later stopped, and several occupants exited the vehicle and ran. The officer struck one of the fleeing
men with his patrol car, knocking him to the ground. The officer exited and instructed the man to stay on the
ground, but he stood up and began to run. The officer deployed his Taser in the probe mode and the man fell to
the ground. Two responding officers deployed their Tasers as they believed the first officer’s deployment was
ineffective. The man began bleeding from the head and he was treated for a fractured skull and severe
traumatic brain injury, which was permanent.

A § 1983 lawsuit was filed against the officers for excessive force in violation of the Fourth Amendment for
striking the man with the patrol car and excessive use of the Taser. He also filed a claim against the chief for
failing to train and deliberate indifference. The federal district court denied qualified immunity and ruled that
being struck with the patrol car diminished any potential threat of flight or resistance, and therefore the use of
the Taser, without a warning, was unreasonable. Regarding the Taser application by the responding officers,
the court noted that the plaintiff, who had been struck by a patrol car and was on the ground face down, did
not pose a significant threat justifying the use of additional Taser applications, and determined that such use
was unreasonable. The court concluded that such actions by the officers demonstrated inadequate training and
deliberate indifference to the application of excessive force.

In Brown v. Chapman (2016) an officer deployed his Taser at a combative arrestee, the probes struck the
chest area of the arrestee, and he later died. The family filed a § 1983 lawsuit against the City of Cleveland
alleging that the police department’s Taser and use of force policy was unconstitutional, that the department’s
training on the use of the Taser was inadequate, and that the department ratified the officer’s use of force by
not conducting a thorough investigation. Prior to the incident (December, 2010) TASER International updated
its training materials and advised instructors and officers to avoid chest shots when possible, in order to reduce
the potential of affecting the heart. Several months before the incident Officer Chapman completed Taser
training, was instructed with the old training materials, and was instructed to target the body, with the
exception of the head and neck areas. The federal district court granted summary judgment to the officers and
the Sixth Circuit reversed. The court explained that in order to prevail on a failure to train claim the plaintiff
must show: (1) that the training program was inadequate to the tasks the officer must perform; (2) that the
inadequacy amounted to deliberate indifference; and (3) that the inadequacy is closely related to or actually
caused the plaintiff’s injury. The court dismissed the ratification claim. However, the court agreed with the
plaintiff that the consequences of the department’s inadequate training were a direct causal link and violated
Brown’s constitutional right to be free from excessive force.

Failure to Train in Corrections

Lawsuits alleging a constitutional injury resulting from a department’s policy of failing to provide training to
correctional employees are common. Prior to the Canton decision, several cases ordered jail and prison
administrators to train their personnel or improve their training programs (Jones v. Wittenburg, 1971; Miller v.
Carson, 1975; Owens v. Haas, 1979). In Owens the Second Circuit Court of Appeals held that while a county
may not be liable for merely failing to train employees, it could be liable if its failure was so severe as to reach
the level of gross negligence or deliberate indifference. In Hays v. Jefferson County (1982) the Sixth Circuit
Court of Appeals ruled that a supervisor may be held liable “only where there is essentially a complete failure
to train … or training was so reckless or grossly negligent that future misconduct is almost inevitable, or would
be characterized as substantially certain to result.”

Since Canton, several correctional administrators have been found liable in lawsuits alleging a failure to
train. Using the deliberate indifference standard, a federal district court in Coleman v. Wilson (1995)

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determined that custodial staff were inadequately trained in signs and symptoms of mental illness, which
supported allegations that disciplinary and behavior control measures were used inappropriately against
mentally ill prisoners. The three- hour training course attended by all new officers and additional in- service
training at the institutional level was insufficient to prevent some officers from using punitive measures to
control prisoners’ behavior without regard to the cause of the behavior.

The Ninth Circuit Court of Appeals ruled in favor of prisoners on several issues in Madrid v. Gomez (1995),
including failure to train, excessive force, constitutionally inadequate mental health services, and deficient
medical care. The court held that staffing levels were insufficient, training and supervision of medical staff
were almost non- existent, and screening for communicable diseases was poorly implemented. Prisoners
frequently experienced significant delays in receiving treatment, there were no protocols or training programs
dealing with emergencies or trauma, and there were no procedures for managing chronic illness. Prisoners
established prison administrators’ deliberate indifference, showing that they knew that unnecessary and
grossly excessive force was routinely being used against prisoners by officers and that these practices posed a
substantial risk of harm to prisoners. The court also held that prison officials had actual subjective knowledge
that conditions of isolation presented a substantial excessive risk of harm for mentally ill and other vulnerable
prisoners and that the officials acted wantonly in violation of the Eighth Amendment.

Prison officials were found liable in Gilbert v. Selsky (1994) when they failed to train hearing officers in
prison disciplinary proceedings. The district court found that prison supervisory personnel were personally
involved with violations of prisoners’ constitutional rights.

Conducting regular training of correctional personnel and fully documenting that training can assist in
defending against allegations of inadequate training. In Vine v. County of Ingham (1995) the district court held
that the sheriff and the county were not deliberately indifferent to a prisoner who died in their custody after
consuming methyl alcohol prior to arrest. The court ruled that the sheriff had provided the necessary training
to his officers commensurate with state law, and they had also received substantial in- service training. The
court noted that such claims would apply only if the conduct represents usual or recurring situations officers
must deal with.

Prison officials successfully defended a failure to train claim in Tucker v. Evans (2002). A prisoner was
attacked and killed by a fellow prisoner. The estate of the deceased prisoner brought a § 1983 action claiming
that prison officers failed to protect the prisoner and that they failed to properly train correctional officers. The
district court denied summary judgment and on appeal the appellate court reversed the decision. The court
reasoned that correctional officers had no prior warning that the prisoner was at risk because they did not
know about an argument between the two prisoners. The court found that correctional officials did not show
callous indifference to the prisoner and were entitled to qualified immunity because they did not violate the
Eighth Amendment by failing to train their officers. According to the court, correctional officials provided
officers with six weeks’ training at the state’s correctional academy and they also provided subsequent on- the-
job training.

In some failure to train claims the plaintiff has attempted to hold the governmental entity to national
standards developed by associations regarding suggestions for training. In Smith v. Board of County
Commissioners of County of Lyon (2002) county officials successfully defended such a claim. A county jail
detainee brought a § 1983 lawsuit, claiming under the Eighth Amendment that he failed to receive adequate
medical care for a spinal cord injury that he sustained during a fall at the jail. He also claimed that officials had
failed to adequately train correctional officers. The detainee alleged that officers failed to provide treatment for
his injuries and failed to provide clean bedding and clothing to him as he suffered from incontinence on five
occasions.

The court granted summary judgment for the officers as they presented evidence that, once they were aware
that the detainee required medical attention, they immediately took him to the jail medical unit for treatment.
The detainee alleged that there were systemic and gross deficiencies in training detention officers. He claimed
that county officials failed to follow certain national training standards, but failed to show that the county had
any duty to follow the standards. The court granted summary judgment for the county on the training claims
as well, holding that the minimum standards for the operation of county jails are established in state law,
rather than by national standards.

Prisons and jails admit prisoners with a wide range of medical needs and the question in many lawsuits

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involves the adequacy of training provided for facility employees. In Wakat v. Montgomery (2007) the estate of
a prisoner who died in a county facility brought a § 1983 claim against the county, the facility’s physician, and
officers. The court granted summary judgment in favor of the county. The court ruled that the county
complied with training standards of the state, provided officers with training in the basics of correctional
health care, and periodically provided in- service training on prisoner medical care issues. Further, the court
determined that the physician did not act with deliberate indifference in providing medical care for the
prisoner while confined. The court did not find any evidence that showed a pattern or a recurring situation of
tortious conduct by inadequately trained employees.

Summary

Case review reveals that deliberate indifference is a difficult standard for plaintiffs to establish in asserting
claims of inadequate training. The trends and the margin for winning civil lawsuits by the police illustrate this
point. As several case examples have shown, police administrators should note specific training categories that
may apply to their respective departments. Administrators are encouraged to review the following
recommendations in an effort to shore up potential agency deficiencies to insulate the agency, supervisors, and
officers from civil liability.

First, consistent with the decisions in Canton and Iqbal, administrators must provide training to their
employees on a regular basis. While deliberate indifference is a high standard to overcome, a plaintiff may
prevail if the following can be demonstrated: (1) a policy that consciously ignores providing training that
thereby causes a constitutional deprivation, (2) a widespread practice that reveals a custom of failing to train to
recurring tasks, and (3) an allegation that the constitutional injury was caused by a person with final
policymaking authority. A plaintiff must show that the governmental entity failed to provide adequate training
in light of foreseeable consequences or failed to act in response to repeated complaints of constitutional
violations by officers.

Second, each administrator should conduct an internal assessment of routine and recurring tasks that
officers and supervisors perform. Incident reports, calls for service, citizen/prisoner complaints, disciplinary
actions, and changes in job requirements spanning a three- year period should be assessed based on the
criticality and frequency of the activity. As changes in the law affect job functions, appropriate training should
be developed. Based on this assessment, regularly scheduled training should be provided to all officers and
supervisors in those activities. At a minimum, each category identified should be a priority addressed through
training on a recurring basis.

Third, once a training assessment has been finalized, administrators are encouraged to revise the policies and
procedures that parallel training topics. For example, a use of force policy should be reviewed annually and
revised to accompany the training. As use of force laws and authorized restraint techniques and equipment
change, training that addresses the policy change should be performed. Moreover, a policy of annual/biannual
training that outlines the topics to be covered and by what time interval the training will be conducted should
be established by the administrator. It is recommended that training in high- liability areas requiring physical
skills and competency be provided on an annual basis. Minimally, this would include lethal and non- lethal
force (and equipment), emergency vehicle operations, arrest, and search and seizure laws. Officers should be
provided with realistic, incident- based training in these areas. Training for officers in their constitutional
requirements in these high- liability areas is also suggested. In the past 30 years, search and seizure laws and
laws of arrest have been most likely to change. This affects officers’ and supervisors’ Fourth Amendment
duties; therefore annual training is recommended in these areas. Administrators are encouraged to provide
training that comports with the standards as specified by the training and standards council for their respective
state. Correctional administrators should likewise address training issues surrounding the First, Fourth, Eighth,
and Fourteenth Amendments.

Fourth, to avert future failure to train liability and to maintain occupational professionalism, supervisory
training should be instituted. This should include pre- and post- promotion training, conducted at least
biannually, concentrating on supervisory duties and including policy interpretation, implementation, and
enforcement, as well as performance evaluation of subordinates. Supervisors should also receive regular
training that emphasizes managerial responsibilities in risk management and the reduction of administrative

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liability. A commitment to ongoing training for supervisors is essential for the efficient operation of the
department.

Fifth, it is critical that all training be documented and accurate training records be maintained. Several
computer programs have been designed to track training, and administrators should use the programs that are
appropriate for their needs. Training records for each officer and administrator should be maintained and
inspected at least twice a year to ensure their completeness. Administrators should monitor and evaluate
current and future training needs annually. It is also recommended that police administrators review their
Field Training Officer (FTO) program in light of the research findings. Training scenarios for FTOs could be
developed from these high- liability areas, placing the new officer in positions in which he or she will be
evaluated. This would be most beneficial in reinforcing appropriate decision- making and future behavior.
Administrators are encouraged to enlarge their roll- call training with documentation and consider providing
training through teleconferencing, interactive computer- based training, and training available via the internet.

Sixth, scenario- based training has become popular with many criminal justice departments as well as
training academies. Such training frequently utilizes contextual learning components (Severginin and Ross,
2012, 2016; Ross, 2011). Contextualization is a style of adult learning that seeks to tie in new information with
existing knowledge and real- life situations. It acknowledges that skills and knowledge are integrated into
actual field applications. Using such training methodologies underscores the central component in the Canton
decision, which addressed providing “realistic” training for officers. As agencies provide more scenario- based
training they should ensure that the scenarios are designed to meet the types of encounters that officers
routinely face, that the scenarios are scripted out in advance, that all role- players are pre- trained, and that
measures are taken to reduce the risk of injury to all participants, provide safety equipment for all participants,
videotape the training, and thoroughly document the training. Such training can assist in defending the next
allegation of failing to train.

Further, to increase performance under stress, simulation training should be provided on an ongoing basis to
improve decision- making and to enhance expertise and the experience of officers (Ross, 2011). In order to
obtain a clearer picture of the human factors influencing perceptions, researchers have recommended that
police officers receive stress- induced training through a force simulator or simunitions training (Klinger and
Brunson, 2009; Engel and Smith, 2009; Novak, 2009). Simulators can provide realistic training for officers by
immersing them in field- type confrontations. Using a virtual force simulator designed by the Meggitt
Corporation, Ross, Murphy, Hazlett, and Burnell (2009) placed 150 veteran police officers in lethal force
scenarios and exposed them to various stress inoculation components. The objective was to measure whether
the scenarios, designed with various stressors (visual, lighting, tactical, and auditory), would activate the
sympathetic nervous system (SNS) in order to assess the officers’ perceptions of stress, other physiological
factors, and psychological dimensions. The results of the research showed that the officers truly believed that
the scenarios were “realistic,” such that the brain triggered significant measurable SNS discharges in each
officer. Recommendations from the findings showed that officers should routinely be provided with virtual
simulator training with stress immersion strategies to enhance the human factors involved in stressful lethal
force encounters (Ross, Murphy, and Hazlett, 2012).

Stress inoculation and dynamic scenario- based training is highly useful in exposing officers to recognize a
level of threat, exposing them to the effects of perceptual narrowing problems at combat distance, and
enhancing forced decision- making. Such “intensity” factors complement the “frequency” factor necessary in
the use of force training. This type of training enhances the ability to build expertise in field performance and
maximizes proper decision- making. It keeps the brain in the training mode, which is essential for officer field
performance. Realistic scenario- based training should be structured around dynamic encounters where the
instructor has previously trained the officer to recognize a threat level with response options consistent with
the threat cue (Ross et al., 2009). Exposing officers to anticipated/unaccepted threat cues in spontaneous lethal
force encounters, where the officer can experience the effects of SNS activation, is important in managing
stress and perceptions. Integrating stimulus response training and building dynamic scenario- based training
around the four components of reaction time (perception, analyze, formulate a strategy, and motor response)
would be useful.

Section 12132 under the Americans with Disabilities Act is emerging as a component of legal actions filed
against the criminal justice administrator. The criminal justice agency’s response to the disabled person and

168

mentally ill should be coordinated with professionals from the courts, mental health, police, and detention
facilities in order to provide a comprehensive approach to addressing the associated societal issues.
Administrators should develop and/or revise policies and procedures, and provide training to officers
consistent with state standards. This will go a long way toward defending allegations that the department was
deliberately indifferent to the needs of the mentally impaired.

Since the Canton decision, police and correctional personnel have prevailed in a majority of civil lawsuits,
and continued strides are being made toward providing regular training for criminal justice personnel.
Administrators should continue to maintain the commitment to providing and expanding regular training in
order to avert future lawsuits alleging inadequate training.

169

Bibliography

Alpert, G.P. (1997). Pursuit driving: planning policies and action from agency, officer, and public information.
Police Forum, 7, 1–12.
Barrineau, H.E. (1994). Civil liability in criminal justice (2nd ed.). Cincinnati, OH: Anderson Publishing Co.
Beckman, E. (1987). Identifying issues in police pursuits: the first research findings. Police Chief, July, 57–63.
Bureau of Justice Statistics (BJS) (2005). Sourcebook of criminal justice statistics. Washington, DC: U.S.
Department of Justice.
del Carmen, R.V. (1987). Criminal procedure for law enforcement personnel. Monterey, CA: Brooks/Cole.
del Carmen, R.V. (1991). Civil liabilities in American policing: a text for law enforcement personnel. Monterey,
CA: Brady.
Engel, R.S. & Smith, M.R. (2009). Perceptual distortion and reasonableness during police shootings: law,
legitimacy, and future research. Criminology and Public Policy, 8, 141–151.
Falcone, D.N., Charles, M.T. & Wells, E. (1994). A study of pursuits in Illinois. Police Chief, July, 59–64.
Flink, W.L. (1997). Executive summary of the sourcebook. Phoenix, AZ: International Association of Directors
of
Law Enforcement Standards and Training.
Gallagher, G.P. (1989). Managing the risks of police pursuits. Governmental Risk Management Reports,
December, 1–6.
Gallagher, G.P. (1990). Risk management and police administrators. Police Chief, 57, 18–29.
Kappeler, V.E. (1997). Critical issues in police civil liability (2nd ed.). Prospect Heights, IL: Waveland Press, Inc.
Klinger, D.A. & Brunson, R.K. (2009). Police officers’ perceptual distortions during lethal force situations:
informing the reasonableness standard. Criminology and Public Policy, 8, 117–140.
National Institute of Justice (NIJ) (1998). Pursuit management task force. Washington, DC: U.S. Department of
Justice.
Novak, K.J. (2009). Reasonable officers, public perceptions, and policy challenges. Criminology and Public
Policy, 8, 153–161.
Plitt, E.A. (1997). Failure to train liability. Chicago, IL: Americans for Effective Law Enforcement (AELE) Police
Civil Liability Manual.
Ross, D.L. (2000). Emerging trends in police failure to train liability. Policing: An International Journal of Police
Strategies and Management, 23, 169–193.
Ross, D.L. (2011, December). Liability for failure to train in use of force. Journal of Law Enforcement Executive
Forum, Special Edition, 59–79.
Ross, D.L., Murphy, R.L., Hazlett, M. & Burnell, B. (2009). Virtual training systems and survival humanistic
factors. Interservice/Industry Training, Simulation, and Education Conference (conference proceedings), 1–10.
Ross, D.L., Murphy, R.L. & Hazlett, M.H. (2012). Analyzing perceptions and misperceptions of police officers in
lethal force virtual simulator scenarios. Journal of Law Enforcement Executive Forum, 12, 53–73.
Scarry, L. (2011). Failure to train. Law Officer, www.lawofficer.com.
Severginin, V. & Ross, D.L. (2012, March). Best practices in police use of force training. Journal of Law
Enforcement Executive Forum, 25–38.
Severginin, V. & Ross, D.L. (2016). Prevention and training (Chapter 10; 169–183). In M.J. Palmiotto (Ed.), Police
use of force: Important issues facing the police and communities they serve. Boca Raton, FL: CRC Press, Taylor
and Francis.
Silver, I. (2017). Police civil liability. New York, NY: Matthew Bender & Co.
Staff, H. (1990). Canton v. Harris determines standard for training liability cases. Police Chief, 57, 37.
Tuttle, S. (2018, February). Update on Taser applications and statistics, www.taser.com.
Vaughn, M.S. & Coomes, L.F. (1995). The liability of moonlighting: are police officers employed as security
guards acting under color of law? Police Liability Review, 6, 6–9.
Vaughn, M.S. & del Carmen, R.V. (1995). Civil liability against prison officials for inmate- on- inmate assault:
where are we and where have we been? Prison Journal, 75, 69–89.

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171

8
Operating Criminal Justice Agencies Under a Consent
Decree

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Overview

Beyond civil litigation filed by citizens or prisoners in state or federal courts, there are additional methods by
which criminal justice personnel are scrutinized about performing their sworn duties. Congress has passed
significant legislation authorizing the Department of Justice (DOJ) to initiate investigations and pursue
litigation against correctional and police entities. In 1980 Congress passed the Civil Rights of Institutionalized
Persons Act (CRIPA), Title 42 U.S.C. § 1997, which addresses investigations relating to conditions of
confinement. In 1994 Congress promulgated Title 42 U.S.C. § 14141 as part of the Violent Crime Control and
Law Enforcement Act, which prohibits government authorities or those acting on their behalf (including law
enforcement officials) from engaging in a pattern or practice of conduct that deprives people of their
constitutional rights.

The purpose of this chapter is to describe how these two pieces of legislation operate and affect criminal
justice agencies. The issue of police misconduct and prisoner abuse is clearly a matter of social policy and
legislation requiring assessment. These laws have had a significant impact on the criminal justice system and
represent a major federal government intervention into the operations of criminal justice agencies. Legislation
affects policy, and administrators and officers should be aware of the mechanics of these two statutes and
address changes in their agency’s operations as appropriate.

Section 14141

High- profile incidents— such as the Rodney King arrest (1991), the Amadou Diallo (1994) and Abner Louima
(1997) incidents in New York, and the riots in Cincinnati after a police officer shot and killed an African-
American youth (2001)—have raised concerns about how the police treat citizens. In addition, the Rampart
precinct scandal (2000) in Los Angeles, where a veteran officer, Rafael Perez, stole cocaine worth $1 million,
only serves to convince the public that police corruption is rampant as well. These, among other incidents,
have become popular examples that police pundits point toward in order to prove their contention that the
police are corrupt and require federal regulation (U.S. Commission on Civil Rights, 2000). Alongside their
sweeping allegations that the police profession is corrupt, the critics claim it hides behind the “blue curtain” of
cover- up and chronically uses excessive force.

There is no question that acts of police misconduct have occasionally occurred and that excessive force has
been used in some circumstances. There is no empirical evidence, however, to support claims that excessive
force or officer misconduct occurs with statistically significant frequency (Ross, 2005). In his analysis, Ross
found in 65 published articles on police use of force from 1968 to 2004— including two DOJ national studies
(1996 and 2001) and an International Association of Chiefs of Police independent national study (2001)—that
the use of any type of force is rare in police contacts with citizens. Moreover, he found that excessive force
accusations, in contrast to public perception, were even rarer.

The United States Supreme Court has addressed proper police conduct in a series of landmark cases since the
1960s. The Court’s interpretation of the “due process” rights of citizens has played a significant role in shaping
social policy. For example, the Court’s decisions in Mapp v. Ohio (1961) (which established the exclusionary
rule) and Terry v. Ohio (1968) (which established standards for investigatory detentions and weapons pat-
downs) placed restrictions on police in conducting searches and seizing evidence, and required police officers
to follow legal procedures. These procedures are intended to properly guide officers and curb police
misconduct. As shown in previous chapters, since the 1960s citizens have used Title 42 U.S.C. § 1983 as the
primary civil remedy for asserting legal claims against the police for alleged constitutional violations (Kappeler
et al., 1993; Vaughn & Coome, 1995; Worrall, 2001; Ross, 2003a, b; Silver, 2017). While § 1983 remains a viable
mechanism to redress alleged governmental intrusions on citizens’ rights, some scholars argue that it has only
been partially successful in deterring or curbing police abuse of authority (Silveria, 2004; Walker, 2003; Kim,
2002; Levenson, 2001; Livingston, 1999). This argument, however, has been considerably weakened after the
Court’s decision in Groh v. Ramirez (2004), when it denied qualified immunity to an officer who relied on an

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invalid warrant that he had prepared, even though it was approved by a magistrate. The decision further warns
against police abuse of power and sends a message to the police community regarding judicial intolerance of
such misconduct.

Police misconduct still occasionally occurs, despite police reforms and commission reports about police
practices over the past 50 years, advances in police practices, and court decisions. Seeking to remedy the issue,
Congress enacted § 14141 of Title 42 as part of the Violent Crime Control and Law Enforcement Act in 1994.
Section 14141 grants authority to the DOJ to pursue equitable and declaratory relief against police engaged in a
“pattern and practice” that deprives individuals of their constitutional rights. Section 14141 does not authorize
compensatory damage awards to citizen complaints, but rather gives the DOJ the power to initiate police
reform by essentially dictating future management practices in a police entity (Silveria, 2004). In an initial
assessment of the application of § 14141, Livingston (1999) argued and agreed with some police scholars that
police reform will be most effective when reform involves not only simple adherence to the rules but also a
wholehearted embrace of change in organizational values and systems.

Section 14141 specifically authorizes the DOJ to bring a lawsuit against a police organization rather than
individual officers. Beginning in 1996 and through 2016 the DOJ has performed 69 investigations into police
departments and entered into 40 reform agreements. One investigation was dropped. According to the DOJ,
there are 18 open reform agreements and five open investigations into police departments (DOJ, 2017).

Background of § 14141

Provisions of the Act

In response to the Rodney King incident, Congress passed the Violent Crime Control Act in 1994. As part of
this legislation, Congress gave authority to the United States Attorney General to investigate allegations of
“patterns and practices” of police misconduct. Section 14141 substantially enhances the DOJ’s statutory basis
for intervening in the affairs of police departments. This provision allows the Special Litigation Section of the
Civil Rights Division (Division) to investigate and bring a civil lawsuit against a police department when the
Attorney General believes that constitutional violations based on patterns and practices have occurred. The
fundamental purpose of § 14141 is to remedy systemic police abuse and to provide reforms in policing.

In establishing a claim, § 14141 requires the Division to demonstrate that a municipality or police
department engaged in a “pattern or practice” of conduct by law enforcement officers that has deprived
individuals of their constitutionally protected rights. Congress provided no explicit guidance nor has there
been any judicial interpretation of § 14141, and defining a “pattern or practice” of misconduct can be
problematic. There are, however, two components that shed light on the interpretation. First, the United States
Supreme Court suggested in developing Title VII language that the term “pattern and practice” can mean
“denoting something more than the mere occurrence of isolated or accidental or sporadic unlawful acts” (Int’l
Brotherhood of Teamsters v. United States, 1977). In the police context this can mean that a “pattern or
practice” of conduct by police officers that violates constitutional rights would likely show that such conduct is
a practice or custom that occurs frequently or regularly (Livingston, 1999). With such regularity of occurrence,
a court could conclude that such abusive conduct is the regular practice rather than the unusual practice. The
Supreme Court has also ruled in Hazelwood School District v. United States (1977) (a case predating § 14141)
that a plaintiff can make a prima facie case of “pattern or practice” of discrimination simply through the
introduction of statistical evidence. Because statistical evidence was sufficient proof of a “pattern or practice”
of discrimination (in an educational setting), a plaintiff need not prove any overt institutional practice to
satisfy the definition.

Second, in the predecessor to § 14141, the Judicial Committee Report in 1991 suggested that establishing a
“pattern or practice” need not be based on extensive evidence of systematic repeated violations (H.R. Rep. 102).
The report cited acts or omissions that constituted patterns and practices in illustrating the potential
applicability of § 14141 to situations in which relief was formerly unavailable. For example, the committee
cited the Ninth Circuit Appellate Court’s holding in Mason County v. Davis (1991). Affirming the lower court’s
decision, the appellate court determined that a § 1983 claim was valid when four separate plaintiffs showed a
pattern of excessive force stemming from unconstitutional traffic stops performed by deputies over a period of

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nine months. Such a pattern of abuse demonstrated the inadequacies of training provided by the department
for its officers.

Types of Allegations Made Under § 14141

Section 14141 allows the Division to file a lawsuit against a police entity for allegations of “pattern or practice”
of police misconduct. The allegations must show that an individual’s constitutional rights were violated. While
such allegations may include a variety of claims, analysis of the consent decrees and memorandums of
agreement (MOAs) reveals several levels of claims.

The first level of claims regarding police officer misconduct is a natural outgrowth of Code of Practice (COP)
as it is the officer, or officers, who initiates the contact with the citizen. Common complaints typically include:
using excessive force (including abuse of the Taser, officer-involved shootings, and arrest- related deaths); false
arrest and false imprisonment; improper traffic stops; officer sexual misconduct; searches; and seizures of
people. The second level of claims concerns patterns and practices condoned by departmental administrators.
Common allegations may include: supervisors who condoned officer abuses and misconduct; failure to
implement or enforce policies; failure to train, supervise, and discipline officers; failure to investigate officer
misconduct or citizen complaints; failure to conduct internal investigations of critical incidents; failure to
incorporate early warning/risk management systems; gender bias policing; and failure to implement a risk
management system that could assess officer practices of abuse.

Principal Components of § 14141

Formal Investigation

Once allegations of constitutional violations emerge, the Division conducts a preliminary inquiry to determine
the nature of the allegations. The Division may notify the agency or the municipality that it will be conducting
a formal investigation. There are two general questions asked by the Division during the investigation: (1)
would the allegations, if shown to be true, support a violation of the Constitution or federal law; and (2) would
the allegations, if proven, establish a pattern and practice, as opposed to an isolated violation of the
Constitution or federal law. If the investigation reveals evidence of a pattern or practice of abuse, the DOJ may
release a letter of general findings to announce its discovery, or it may simply walk away, stating that there
is no evidence to support a claim.

Consent Decree

There are several options available to the DOJ when a “pattern or practice” is established, in its opinion, under
§ 14141. First, the DOJ may file a lawsuit against the police agency, which may involve a lengthy litigation
process. Second, a lawsuit may be filed with the expectation that the city will settle the case through a consent
decree or settle it through a MOA. While both are settlements, there are distinctions between the two. Consent
decrees serve as court- ordered and court- enforceable settlements. A federal judge provides oversight of the
consent decree, which normally lasts five years (Livingston, 1999). When a MOA is used to settle the Division
claim there is no judicial oversight. A municipality agrees in writing to comply with recommendations made
by the Division, which threatens a future consent decree or litigation if the agency fails to comply with the
agreement. Ostensibly a consent decree is a MOA with teeth (Silveria, 2004). A Special Monitor is appointed by
the court to serve as an independent auditor in consent decrees and MOAs. The Special Monitor reports on
each defendant’s compliance on a quarterly basis.

The purpose of the consent decree is to ensure accountability, transparency in implementation, and
flexibility for accomplishing institutional reforms (DOJ, 2017). Each consent decree addresses unique and
specific abuses identified by the DOJ investigation of a particular police entity, and forms the basis for the
claim of a “pattern or practice” of police misconduct. While not every consent decree requires the police agency
to address the same issue or the same number of issues, analysis of the six consent decrees reveals a total of 94
factors that have been addressed during the monitoring period. Many of these factors required by the DOJ

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during the duration of the consent decree were derived from the department’s report on Good Policing (DOJ,
2003).

Consent decrees mainly call for the revision or development of policies and procedures. Common policy
areas generally include: use of force, including policies on specific weapons, less- lethal weapons, and firearms;
citizen complaints; in- car video camera and body- worn camera usage; conducting investigations; performing
arrests; searching and obtaining warrants; policies on prohibiting bias- free policing; conducting traffic stops;
foot pursuits; and racial profiling.

The second general factor of each consent decree is the establishment of a data- driven information
management system. These systems are designed to provide useful information about the activities of all
officers and supervisors in the department in order to establish accountability measures. The data management
system is comprised of six separate elements, including a risk management database and analysis, officer and
supervisor database, citizen complaints, and an early identification system for problem officers. A separate
tracking system must be designed and maintained that documents police and citizen contacts, police use of
force, traffic stops, citizen arrests, police misconduct, and police response to the mentally impaired. Each
database requires an involved officer to complete and submit designated forms and reports documenting his or
her actions in a given incident.

The use of a reporting system is a core component in the consent decree actions (Walker, 2003; DOJ, 2017). It
is integrated into the data- tracking/reporting system, the revised policy, the early identification system,
investigation protocols, and the risk management assessment system. In many agencies this has meant a total
revamping of their entire system.

The early identification system is designed to identify potential problem officers so supervisors can provide
those officers with early intervention, normally through counseling or additional training by a supervisor. The
system is integrated into the other database systems described above. The system provides supervisors with
greater flexibility in addressing performance problems (Walker et al., 2000). The concept is supported by
research suggesting that in any law enforcement agency a small number of officers are involved in a
disproportionate percentage of problem incidents, such as citizen complaints, use of force incidents, civil
lawsuits against the department, and other indicators of performance problems (Walker, 2001).

Another factor addresses establishing varying agency programs. Such programs can include field officer
training, in- service training, police response to the mentally impaired, community outreach, and employee
assistance programs. Training is a core component in consent decrees and MOAs. Generally, the decrees do not
stipulate the content of such training. Common training subject areas include: use of force; limits on the use of
chokeholds and head strikes; limits on use of force on handcuffed or restrained people; search and seizure laws;
response to domestic violence, hostage, and barricade situations; systems on responding to emotionally
impaired persons; vehicle pursuits; communication skills; and training on racial, gender, and religious
differences of community citizens. Supervisors must also attend the training.

Performing investigations represents the fourth major factor of the consent decree, and topic areas can
include criminal, civil, and citizen complaints, disciplinary complaints, and internal affairs investigations. A
significant majority of the consent decrees contain the requirement of performing use of force investigations.
Specifically, the decree requires that investigators be provided with advanced training on collecting and
analyzing evidence, maintaining chain of custody of all evidence, interviewing involved officers, interviewing
witnesses, analyzing and comparing evidence with videos, the results of the investigation interviews,
department policies and procedures, tactics used by officers, and preparing reports. Citizen complaint
investigations also must be addressed. After investigations are concluded a report must be submitted that
shows how the investigation was conducted and the evidentiary basis of the findings of the investigation.
These provisions are designed to correct specific problems that are unique to a department’s failure to conduct
investigations or past failure to perform a thorough and complete investigation.

The fifth major factor of the consent decree mandates that the police department must add and/or
strengthen an officer wellness and support program (DOJ, 2017). Police officers place their lives on the line
daily and operate in a not only highly dangerous environment but perform their sworn duties in extremely
stressful situations. The Division requires each law enforcement agency to provide access to health and
wellness programs, physical fitness programs, stress management tools, and confidential crisis counseling or
other support services programs (DOJ, 2017).

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The sixth factor addresses administrative oversight of the entire consent decree. For each agency an
independent monitor is assigned by the court to provide quarterly progress monitoring of how the agency is
complying with the components of the consent decree. All reports must be entered into a database that tracks
the unique components of each consent decree. Supervisors must dedicate time to analyze trends and patterns
of officer activities that were identified in the previous sections. Supervisors must periodically monitor the
documents that are to be part of the ongoing assessment of officers, including annual performance evaluations
(Livingston, 1999). Quarterly reports must be prepared by supervisors documenting these assessments. Certain
steps must be taken when an officer accumulates a number of use of force incidents, citizen complaints, or
other incidents that may reveal conduct outside authorized policy requirements. For example, if an officer
accumulates more than three citizen complaints within two years, he or she must be counseled and attend
refresher training in the subject matter consistent with the complaint. More severe sanctions may be assessed
depending upon the severity of the complaint. Documentation of the remediation must be entered into the
early intervention system and the database. Supervisors must perform annual evaluations of every officer
under their command.

Memorandum of Agreement

MOAs are more conciliatory than consent decrees. They do not involve judicial monitoring, as do consent
decrees. While stipulations from consent decrees and MOAs may be similar, MOAs are more likely to address
three primary topic areas beyond officer training and developing an early intervention warning system with all
officers: (1) policy and procedure; (2) citizen complaints; and (3) data collection.

The first area addressed in a MOA is policy and procedure for performing investigations within the police
department. All of the departments are required to revise their policies pursuant to the findings of the
Division’s investigation.

Perhaps the most fundamental difference in the MOA is a change in the use of force policy. While police
agencies today provide their officers with a use of force policy, revisions may have to be made such as
restricting the use of certain force techniques or equipment, reporting procedures, or tracking and analyzing
force incidents. The Washington, D.C., MOA required the department to completely overhaul their use of force
policy and bring it into compliance with applicable law and professional standards (DOJ, 2003). The City of
Cincinnati was required to develop policy language that limited the use of pepper spray, the use of canines,
and the use of the chokehold (DOJ, 2001). The Cleveland Police Department was required to address their
procedures for using detainee holding cells and was also required to revise its lethal force policy (DOJ, 2002).

Complaints have been made that police frequently do not enforce their departmental policies. The problem
may be that the officer in question is being investigated by his or her immediate supervisor, resulting in a less
than thorough investigation. Thus investigations into officer actions contrary to the policy are required in all
MOAs to ensure the integrity of, and public confidence in, the investigation. The subject matter of
investigations generally includes use of force, citizen complaints, traffic stops, and searches and seizures. In
Cincinnati the MOA requires an investigation when an officer uses force. The officer must first notify his
immediate supervisor, the supervisor must respond to the scene, and an investigator from internal affairs must
respond to the scene of “serious” force incidents. The investigator may neither ask leading questions nor show
preference to statements made by the officer, nor may they disregard a witness’s or the arrestee’s statement of
the incident.

Another major component addressed in most of the MOAs is the handling of citizen complaints.
Modifications to complaint procedures are required. The goal is to enhance citizen satisfaction in the outcome
of the complaint process by providing more transparency in the process. In many of the MOAs, officers are
required to carry complaint forms in their patrol vehicles and are required to inform citizens that they have a
right to file a complaint about the officer’s response. Investigations of citizen complaints must be performed
and documented, and a report of the nature of the disposition and description of the evidentiary grounds used
to determine the outcome of the investigation must be completed.

Data collection is also addressed by most MOAs. Data is required to be collected, analyzed, and assessed in a
variety of topic areas, but is focused on traffic stops. This requirement has emerged from allegations that police
have engaged in racial profiling practices during traffic stops. When an officer makes a traffic stop, he or she is
required to submit a lengthy form documenting the nature of the stop. That information is submitted to a

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supervisor for review. The information is then entered into the database system for further analysis and it is
also entered into the early intervention database.

An example of an investigation and settlement agreement between the DOJ and a municipality is noted in
the investigation of the Warren, Ohio, Police Department (WPD) (DOJ, 2012). The investigation focused on
whether the WPD engaged in unconstitutional or unlawful policing through the use of excessive force, and the
WPD cooperated throughout the investigation. The investigation involved an in- depth review of WPD
documents, as well as extensive community engagement. The Division reviewed thousands of pages of
documents, including written policies and procedures, training materials, and internal reports; data; video
footage; and investigative files. Division attorneys and investigators also conducted interviews with WPD
officers, supervisors, command staff, and city officials and conducted interviews with community members
and local advocates. The Division found reasonable cause to believe that the WPD engaged in a pattern or
practice of excessive force in violation of the Fourth Amendment of the Constitution and the Violent Crime
Control and Law Enforcement Act (VCCLEA) of 1994. The Division, WPD, and City of Warren officials
reached an agreement that, once implemented, will resolve the Division’s investigation. To create sustainable
reform, the agreement requires the WPD to continue to develop and implement:

new use of force policies and protocols
systems to ensure that uses of force are documented and evaluated
systems to track citizen complaints and ensure they are investigated promptly
officer training on conducting effective and constitutional policing

The duration of a consent decree or MOA is not stipulated at the time of the agreement. Once the police
department has “fully” implemented all of the terms of the agreement it will be terminated. The decision to
terminate the agreement is made by the overseeing judge and relies on the Special Monitor’s progress reports
to assist in making the decision. Agreements have ranged from several years to more than a decade. The trends
of the Division’s investigations and agreements are identified in Table 8.1.

Investigation Trends of § 14141

Trends

Since 1994 the Division has open hundreds of preliminary inquiries (DOJ, 2017). It has reported the trends of
the investigations, with the outcomes illustrated in Table 8.1.

Table 8.1 reveals 20 years’ worth of trends of the application of § 14141 by the Division. First, 40
governmental agencies have entered into a reform agreement with the Division. Of these

Table 8.1 Types of Agency, Agreement Type and Duration

Police Agency Agreement Type Duration of Agreement

Pittsburgh, PA Police Bureau Consent Decree 1997–2002
Steubenville, OH Police Department Consent Decree 1997–2005
New Jersey, NJ Police Department Consent Decree 1999–2009

Los Angeles, CA Police Department Consent Decree 2000–2009; 2009–2013
Highland Park, IL Police Department MOA 2000–2004

Metropolitan Police Department, Washington, D C MOA 2001–2008
Buffalo, NY Police Department MOA 2002–2008

Columbus, OH Police Department Prevailed in court 2002–2004
Cincinnati, OH Police Department MOA 2002–2008
Mt Prospect, IL Police Department MOA 2003–2006

Montgomery, MD Police Department MOA 2003–2006
Villa Rica, GA Police Department MOA 2003–2006

Detroit, Ml Police Department MOA 2003–2014

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Prince George, MD Police Department MOA/Consent Decree 2004–2007 & 2004–2009
Orange County, FL Sheriff’s Dept MOA 2008–2013

Virgin Island Police Department, Virgin Island Consent Decree 2009–Open
Easton, PA Police Department MOA 2010–2015
Beacon, NY Police Department MOA 2010–2016
Seattle, WA Police Department Consent Decree 2012–Open

East Haven, CT Police Department Consent Decree 2012–Open
Warren Police, OH Police Department Consent Decree 2012–Open

Missoula, MT Police Department MOA 2013–2015
Missoula County Attorney’s Office MOA 2013–2015

University of MT Office of Public Safety MOA 2013–2015
New Orleans, LA Police Department Consent Decree 2013–Open

Puerto Rico Police Department Consent Decree 2013–Open
Albuquerque, NM Police Department Consent Decree 2014–Open

Suffolk County, NY Police Department MOA 2014–Open
Cleveland, OH Division of Police Consent Decree 1999–2005 & 2015–Open

Los Angeles County, CA Sheriff’s Dept Consent Decree 2015–Open
Meridian, MS Police Department Consent Decree 2015–Open

Mancopa County, AZ Sheriff’s Dept Consent Decree 2015–Open
City of Miami, FL Police Department Consent Decree 2016–Open

Ferguson, MO Police Department MOA 2016–Open
Newark, NJ Police Department Consent Decree 2016–Open

Alamance County, NC Sheriff’s Dept MOA 2016–Open
Yonkers, NY Police Department MOA 2016–Open

Baltimore, MD Police Department Consent Decree 2017–Open

agencies, 33 are municipal departments, four are county sheriff departments, one was a county attorney’s
office, one was a university campus police department, and one was a county police department. The
Cleveland Police Department entered into two separate consent decrees, from 1999 to 2005 and again in 2015
(the status is still open). The Prince County Police Department entered into one MOA (2004 to 2007) and one
consent decree with the Division (2004 to 2007). The Los Angeles, CA Police Department entered into one
consent decree (2000 to 2009) and subsequently entered into a transition agreement with the Division from
2009 to 2013.

Second, during the 20 years of implementation of § 14141 agreements, 20 were consent decrees and 20
resulted in MOAs. The average period of terminating either a consent decree or a MOA was about five years.
Of the consent decrees terminated, the average duration was seven years and the average MOA duration was
five years. The longest duration of a consent decree was with the Los Angeles, CA Police Department, lasting
13 years, and the shortest duration of a MOA was with the Montgomery County Police Department, for a total
two years.

Third, considering the lack of congressional guidance on the definition of a “pattern or practice,” policy
patterns of § 14141 have differed significantly between the administrations of Presidents Bill Clinton, George
Bush and Barack Obama. Under President Clinton’s administration, five agreements were initiated; of these
agreements, four were consent decrees. The first investigations occurred in 1996. Pittsburgh, Pennsylvania, and
Steubenville, Ohio, were the first cities the DOJ investigated for practices and patterns of police misconduct.
Both investigations resulted in five- year consent decrees commencing in 1997 and both cities successfully
completed the period of judicial monitoring (Livingston, 1999). The three remaining agreements were
terminated after successful completion. Prior to 2001 and President Bush’s administration, the DOJ had
initiated an investigation of the Los Angeles Police Department (LAPD), but they were placed on a consent
decree during the first year of the Bush administration.

Under President Bush, 11 law enforcement agencies entered into as many agreements with the Division;
eight were MOAs and three were consent decrees. During the first three years of the Bush administration,
more § 14141 investigations were completed than in the six years after its passage under the Clinton
administration. Section 14141 investigations by the DOJ increased under the Bush presidency, due to Bush

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being in office longer than Clinton after the passage of § 14141. From 2001 to 2005 the DOJ conducted 18 §
14141 investigations. The Division dropped the lawsuit in the Columbus, Ohio, investigation (DOJ, 2017);
Columbus, Ohio, is the only city to challenge a § 14141 action in court. The city filed a motion to dismiss the
action, claiming that § 14141 constituted an abuse of the government’s power to enforce the Fourteenth
Amendment (United States v. City of Columbus, 2001). Denying the motion, the federal district court held that
§ 14141 creates congressional oversight to prevent violations of the Fourteenth Amendment. The case dragged
on for several years and the Division decided to drop the case under the Bush administration. This decision is
important because it demonstrates an aggressive, adversarial approach to § 14141 enforcement (Silveria, 2004).
A review of the contents of the MOA suggests a more “cooperative” strategy and policy approach to the
enforcement of § 14141. Under the Bush administration, the investigations were more likely to result in a
MOA.

Investigations of police departments continued under President Obama’s administration. From 2009 until
January 2017, 24 law enforcement agencies entered into an agreement with the Division. Of these agreements,
14 resulted in consent decrees and 10 resulted in MOAs. Of these agreements, 17 are still open. There are four
law enforcement agencies under investigation with the Division since 2012. The Clinton and Obama
administrations were more likely to bring a consent decree against an agency than a MOA, and more likely
than the Bush administration to enter into a consent decree. Consent decrees accounted for 80 percent of the
agreements in President Clinton’s administration and accounted for about 60 percent in President Obama’s
administration. Under President Bush, about 27 percent of the agreements resulted in a consent decree.

Civil Rights of Institutionalized Persons Act

The Civil Rights of Institutionalized Persons Act (2012), 42 U.S.C. § 1997 et seq. (CRIPA) was passed by
Congress in 1980 and is similar to § 14141. CRIPA authorizes the United States Attorney General to conduct
investigations and litigation relating to conditions of confinement in state or locally operated institutions
(excluding private facilities). Under the statute the Special Section of the Civil Rights Section investigates
covered facilities to determine whether there is a “pattern or practice” of violations of residents’ federal rights
(the Section is not authorized to represent individuals or to address specific individual cases). The intent of
Congress in passing CRIPA, as identified in § 1997g, is to correct deplorable conditions and abuses of the use of
force in institutions that amount to deprivations of rights protected by the Constitution.

Section 1997a grants discretionary authority to the Attorney General. Under this provision, whenever the
Attorney General has reasonable cause to believe that any state or political subdivision of a state, official,
employee, or agent thereof, or other person acting on behalf of a state or political subdivision of a state is
subjecting persons residing in or confined to an institution to egregious or flagrant conditions that deprive such
persons of rights protected by the Constitution, or that cause that person harm, may institute an investigation
or civil action in a federal district court for equitable or declaratory relief. The legislation does not provide for
monetary awards. Section 1997b stipulates that, prior to performing an investigation at a facility, the Attorney
General must provide notification in writing to the governor or chief executive officer that an investigation
will be taking place. The announcement must also identify the allegations and supporting facts warranting the
investigation.

Section 1997a of the Act defines institution as “any facility or institution which is owned, operated, or
managed by, or provides services on behalf of any State or political subdivision of a State.” There are five types
of “institutions” addressed under CRIPA: (1) jails and prisons, (2) juvenile correctional facilities, (3) mental
health facilities, (4) developmental disability facilities, and (5) nursing homes. In accordance with CRIPA, the
DOJ reviews complaints, conducts investigations, litigates civil actions that demonstrate a “pattern and
practice” of abuse, enforces and monitors court orders, and monitors the progress toward compliance in
consent decrees and settlements. The discussion in this chapter only addresses issues pertinent to jails and
prisons.

Similar to § 14141, an investigation under CRIPA can result in a consent decree. Investigations into alleged
“patterns or practices” that result in a consent decree generally address the following topics regarding prisoner
rights: medical and mental health care (including suicide prevention); prisoner supervision and failure to
protect (including population management); classification and prisoner discipline; policies and procedures;

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abuses of the use of force by officers/staff; food services; officer and supervisor training and performance
evaluations; the process of conducting investigations of prisoner complaints; and quality of administrative
management of the facility.

If an institution decides to enter into a consent decree after the DOJ investigation, a federal court will
oversee the stipulations of the agreement and monitor the progress of compliance with the orders, like § 14141
actions. Many of the consent decrees include an array of the above-described factors that the correctional
entity must change, which would be specific to that institution, based on the DOJ’s investigation. Failure to
comply with the consent decree can result in extending federal oversight for a period of time determined by
the court. The DOJ may also bring a civil action against the entity in federal court. Special Monitors are
appointed, as in § 14141 actions, to watch over the progress made toward completion of the stipulations. The
institution must provide periodic progress reports.

In 2011 the Lake County Jail facility (Indiana) agreed to settle a legal action with the DOJ out of court.
Complaints by numerous detainees claimed the medical and mental care provided by jail officials violated their
rights. Additional complaints included protection from other prisoners (prisoner safety), deficient suicide
prevention practices by correctional officers, force measures used by correctional officers, environmental
hazards and jail sanitation conditions, and fire safety hazards. The investigation by the DOJ found the
complaints were legitimate and it filed a suit against the facility. The facility agreed to make the recommended
changes and settled the legal action; more than 50 policy changes with associated training were required,
quarterly reporting of all duties performed was required, and the facility was required to hire a new jail
administrator with additional correctional officers (DOJ, 2012).

The court’s decision in United States v. Terrell County, Georgia (2006) provides an example of the federal
government enforcing CRIPA. The federal government brought a legal action in accordance with CRIPA
against a county, county sheriff, and other county officials, seeking a determination that county jail conditions
were grossly deficient, in violation of the Fourteenth Amendment. The district court granted the government’s
motion for summary judgment. The court held that the sheriff and other officials were deliberately indifferent
to the jail’s gross deficiencies in the areas of medical and mental health care for prisoners, protection of
prisoners from harm, environmental health and safety of prisoners, and fire safety in violation of the due
process clause. The court remarked that lack of funds is not a defense to, nor legal justification for,
unconstitutional conditions of a jail, for the purpose of analyzing a deliberate indifference claim under the due
process clause. Even if a defendant argued that it is planning or working toward construction of a new jail to
remedy the unconstitutional conditions at the current facility, the failure to implement interim measures to
alleviate those conditions demonstrates deliberate indifference.

Trends in CRIPA Applications

The DOJ publishes an annual report and describes the outcomes of CRIPA investigations for the five institution
types. Ross (2016) examined the DOJ’s annual reports and assessed the outcome trends in CRIPA actions which
were filed against jails and prisons for the years 2000 to 2014. During the 15 years the DOJ filed 50
investigations and 50 letters of findings against county jail facilities, averaging about three a year. These
investigations resulted in a MOA in 86 percent of the actions. The remaining 14 percent resulted in a consent
decree, and 25 percent of these consent decrees were the result of a lawsuit filed against the county. During the
period, the DOJ dismissed 10 cases and terminated 25. On average, the DOJ oversaw 15 county jails to ensure
compliance with the consent decree or the MOA.

Table 8.2 Types of CRIPA Violations

Violation Type Jails % (n=50) Prisons % (n=28)

Administrative Issues 100 (50) 100 (28)
Prisoner Mental Health Issues 24 (12) 16 (5)

Use of Force 20 (10) 32 (9)
Medical Care 16 (8) 8 (2)

Failure to Protect 10 (5) 8 (2)

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Conditions of Confinement 9 (5) 13 (3)
Lapses of Security Procedures 8 (4) 7 (2)

Sexual Misconduct 7 (4) 13 (4)
Classification 3 (2) 3 (8)

Construct New Facility 2 (5) 1 (5)
Access to Courts 2 (5) 1 (5)

A total of 28 investigations, resulting in 28 letters of findings, were filed against state departments of
corrections (prison facilities). On average, the investigations resulted in about three letters of findings filed
annually. MOAs accounted for about 89 percent of the letters of findings and consent decrees for the remaining
11 percent. On average, about seven prison facilities annually were monitored for progress on the stipulations
of the consent decree or the MOA. Each year the DOJ dismissed three cases and terminated two, on average,
while the average duration of the agreement, regardless of institution or agreement type, was about six years
for the total confinement facilities. Table 8.2 shows the common types of CRIPA violations initiating a consent
decree or a MOA.

As shown in Table 8.2, 11 common violation topics and their frequency are identified. The frequency of the
common violations cited in the letters of findings totaled 78 violations over the reporting period, with jails
accounting for 50 and prisons 28. Commonly the DOJ cites a combination of these violations in one letter of
findings and the totals will not add up to 100 percent. For example, the most frequent combination of violations
amounting to a pattern and practice brought against a county jail included the topics of administrative issues,
mental health treatment, use of excessive force, medical health care, and failure to protect (68 percent). The top
cited combinations of violations in prisons included the topics of administrative issues, mental health, excessive
force, conditions of confinement, and sexual misconduct of officers (58 percent). Violations for excessive force
and sexual misconduct claims were cited more frequently in prisons than in jails, and issues surrounding
treatment of the mentally ill, medical care, and failure to protect were cited more frequently in jails than in
prisons (Ross, 2016).

Each of the identified topic areas contains subcomponents which prompted the investigation. Administrative
issues comprised deficient policies and procedures, failure to train and supervise officers, and deficiencies in
hiring and staffing of the facility. Although an administrative issue, the topic of sexual misconduct by
correctional staff was independently identified as a frequent CRIPA violation and included claims of sexual
assault of prisoners and claims of sexual harassment. Medical care and mental health treatment focused on the
delay and/or denial of adequate care and the limited health care resources provided to adequately care for
prisoner needs. Excessive force violations included the malicious use of physical force, non-deadly force
equipment (i.e., aerosols, impact weapons, and the conducted energy weapons), and the misuse of restraints
and the restraint chair. Conditions of confinement included the topics of overcrowding, unsanitary living
conditions, fire safety, food services, lack of recreation, and totality of conditions. Violations for failure to
protect included abuse of prisoners by correctional officers, lapses in security, prisoner- on- prisoner physical
and/or sexual assaults, and prisoner actions of self- harm (suicide or attempted suicide). Classification issues
included improperly assigning a prisoner to a higher security level than warranted and failing to place the
prisoner in a cell which contributed to an assault by other prisoners and which contributed to self- harm.
Access to court issues included restrictions to legal counsel and legal materials.

Discussion

The assessment of § 14141 and CRIPA implementation trends showed that the application of these two statutes
is rare. Numerous investigations have been conducted in accordance with § 14141, but the outcomes of these
investigations have actually resulted in only 20 consent decrees and 20 MOAs. The trends also suggest political
influence may drive a §14141 investigation resulting in a consent decree or MOA. During the Clinton and
Obama administrations there was at least a three to one likelihood that an investigation would result in a
consent decree, when compared to President Bush’s administration. During President Obama’s administration,
investigations doubled compared to previous years; and the outcome resulted in more than double (24 v. 11) the
consent decrees or MOAs compared to the Bush administration’s application of § 14141.

A CRIPA application is slightly more likely to occur than a § 14141 application. The CRIPA assessment

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showed that jails are almost twice as likely to be targeted by DOJ attorneys as prison facilities. The frequency
of the common violation topics identified aligns with prior correctional litigation trends. Based on these prior
litigation trends and the assessment of the CRIPA trends, correctional administrators should take proactive
measures to ensure their policies and practices are current with these common topic areas.

These two statutes address the ongoing challenges of reforming criminal justice entities. Reforms have been
attempted numerous times over the years. Formally, there have been two primary methods that have addressed
abuses and misconduct. First, there have been several commission reports since the 1960s. Typically, incidents
of alleged misconduct or riots generate an investigation, followed by “blue ribbon panel” reports calling for
sweeping changes in the criminal justice agency involved. These reports have been successful in highlighting
abuses but have not provided lasting solutions.

The second reform attempt has come through the judicial system. Title 42 U.S.C. § 1983 created a remedy for
citizens and prisoners to challenge alleged constitutional rights violations by an officer and his or her
supervisor. The United States Supreme Court, beginning with its decisions in Monroe v. Pape (1961) and Monell
v. Department of Social Services (1978), has upheld this remedy. Numerous lawsuits have been filed during the
last 40 years and the results of these show that plaintiffs have been modestly successful in prevailing in civil
rights actions (Kappeler et al., 1996; Ross, 1997). Critics complain, however, that the judicial system has been
inconsistent in awarding claims on behalf of plaintiffs and that state laws generally indemnify the officers in
the majority of punitive damage awards (Levenson, 2001; Silveria, 2004). Such claims are not fully supported.
At least two studies have found that plaintiffs have prevailed in civil lawsuits against the police in 48 percent
of cases (Kappeler et al., 1996; Ross, 1998) and in 45 percent of cases in correctional litigation.

The courts have fashioned other remedies to curb or punish officer misconduct. The exclusionary rule,
developed by the United States Supreme Court in Mapp v. Ohio (1961), requires that police officers comply
with the requirements of the Fourth Amendment (search and seizure) as well as the Fifth and Sixth
Amendments (self- incrimination). It provides that evidence obtained unlawfully by police officers may not be
used in a criminal proceeding. The Court ruled that it is the law that sets a criminal free— nothing can destroy
a government more quickly than its own failure to follow the law.

It has been argued that exceptions to the exclusionary rule have weakened its ability to deter police abuse
(Livingston, 1999; Walker, 2003). This argument, however, has been shown to be misleading. Davies (1985) and
Orfield (1987) conducted independent studies that concluded that the exclusion of evidence in cases involving
murder, rape, and other violent crime is exceedingly rare. Orfield also noted that the more serious the crime
the greater the officer’s desire to follow the legal procedures, thereby showing the deterrence effect of the
exclusionary rule. Levenson (1999) observed that there is no evidence, and no reason to believe, that a police
officer will be any less motivated to lie in an administrative hearing, where his reputation and job position are
at risk, than in a criminal proceeding, where the court threatens to exclude evidence.

There are a variety of laws on the books (i.e., obstruction, perjury, planting evidence, etc.) that allow
criminal prosecution of officers who engage in misconduct that rises to the level of criminal behavior. For
example, the United States Department of State (2005) chronicles a selection of 18 criminal prosecutions as
examples of police and correctional officers sentenced for crimes of abuse from 1999 to 2005. While any law or
court standard directing officer conduct can be violated, ultimate responsibility to ensure that the rule is
followed lies with the individual officers, supervisors, prosecutors, and the courts. Prosecutors have the
absolute discretion to refuse to prosecute cases if they suspect police misconduct. Brady v. Maryland (1963)
requires the prosecutor to disclose evidence that may exonerate a defendant and that could be used to impeach
a government witness, so a prosecutor has greater motivation to “look behind the curtain.” For more than 40
years, however, the exclusionary rule has generally served as a successful spur toward professionalizing the
police and curbing abuse (Kamisar, 2003). For example, two officers were convicted and sentenced to prison on
federal charges for the Rodney King beating (Levenson, 2001), even after acquittal on state charges. Officer
Rafael Perez of the Rampart precinct of the Los Angeles Police Department was also sentenced to state prison
for his participation in the scandal (Boyer, 2001).

Undermining Democratic Accountability

Consent decrees in general, and operating a criminal justice agency by consent decree in particular, have a
profound effect on public policy. “Policy,” wrote Kaufman (1960), “is enunciated in rhetoric, and is realized in

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action.” With its passage of CRIPA and § 14141, Congress has initiated an additional model attempting to curb
abuses or misconduct without fully considering the consequences of its handiwork. Management by consent
decree represents the new paradigm of attempting to address misconduct and accountability at a federal level,
rather than at the local or state levels. There is no question that police and correctional officers are human and
abuses have occurred. Officer misconduct cannot be condoned and guilty officers should be held accountable.
But the question emerges as to whether § 14141 and CRIPA represent the appropriate social mechanism by
which to address allegations of abuse. After years of DOJ investigations and consent decrees it remains
questionable as to whether such federal intervention is effective in bringing lasting reforms to criminal justice
agencies. There are several reasons for caution and skepticism about forcing consent decrees on police and
correctional agencies and whether this represents legitimate social policy.

One question that begs to be answered is whether every solution should be a federal solution in a country
that is founded on the principle of federalism. Federalism is defined as a political system in which power is
divided and shared between the national/central government and the states (regional units) in order to limit
the power of government. Policing by decree undermines that accountability of government to its constituents
and therefore it becomes less responsive (Sandler & Schoenbrod, 2003).

Consent decrees by their intrinsic nature are settlements negotiated behind closed doors, although they
become public record upon filing in the court proceedings. It has been suggested that, because a potential
consent decree requires the cooperation of the police entity in crafting equitable relief, such an agreement does
not implicate a “strong” degree of federalism (Kim, 2002). When such important policy decisions are made
behind closed doors under threat of a major lawsuit by the federal government, officials become indebted to
them and to a minority of community constituents. This represents a policy consequence that results in the
government failing to represent the public as a whole. A major power shift occurs when policymaking
responsibility is stripped from the local or state government and transferred to the federal government and to
the federal courts. Such an action violates the principle of limited government and turns the judiciary into a
super- legislature. Subsequently this often leaves governments less capable of responding to the legitimate
desires of the populace and makes elected officials less accountable to the public. Rabkin (1989) suggests that
“the more government is accountable to private litigants, the less it can be accountable to anyone else. Limiting
the choices of government officials limits their responsibility, for they cannot be responsible for choices they
are not allowed to make.”

Entering into a consent decree shifts power from the affected government to the DOJ and the courts. Neither
the United States Constitution nor state constitutions allow one legislative body to bind the next, by either
contract or budgetary appropriation (McConnell, 1987). Governments may not contract away the power to
change policy. Citizens who may have legitimate concerns with governmental policies are unable to approach
employees of the DOJ and the federal judge, neither of which are elected officials. Moreover, a consent decree
is shifted away from the concerns of local voters to the specific concerns of technocrats (Sandler & Schoenbrod,
2003). Consent decree investigations can take years to conduct and conclude. Police agencies essentially lose
their rights to a speedy judicial process. Once the contents of the decree are issued, police executives are bound
by the stipulations.

Undermining Police Executive Leadership

Consent decrees have been used as a remedy in the United States during the past 40 years in a majority of
prison and jail condition cases in an attempt to reform the prison and jail system. Jails and prisons have been
subject to consent decree accountability for longer than their police counterparts. It is debatable whether these
decrees have brought lasting reforms to correctional institutions because the decrees have not accomplished all
of their objectives (Sandler & Schoenbrod, 2003). DiIulio (1990) observed in his review of prison consent
decrees that successful accomplishments were accounted for by small incremental advances and compromises
rather than full- scale assaults. What this means is that when judges act like legislatures, they are more likely
to succeed. This, however, exceeds the boundaries of judicial responsibility and allows the judge to assume the
role of a super- legislature. Ironically, Congress restricted the use of consent decrees in corrections and limited
judicial intervention when it passed the Prison Litigation Reform Act (PLRA, 1996), which ostensibly reduces
the filing of “frivolous” prisoner lawsuits and terminates existing consent decrees of correctional facilities. Yet
despite the passage of the PLRA, the DOJ continues to pursue investigations into correctional institutions.

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A major consequence of consent decrees is that they cannot ensure effective leadership within the agency
that is necessary for ongoing reforms to be accomplished, and may even undercut opportunities for such
leadership to emerge (Livingston, 1999; Walker, 2003). Glazer (1979) remarked that court orders that are aimed
at restructuring public institutions normally result in a decline in staff morale, an increase in staff turnover,
and an increase in the unruliness of clientele groups, which undermines police authority by the entire consent
process. Wilson (1989) noted that consent decrees aggravate the unfortunate tendency of bureaucracies to focus
on counting things rather than helping people. Such appears to be the case with the new paradigm of
performing criminal justice responsibilities by decree.

There have been four studies examining the impact of police reforms stipulated under § 14141 consent
decrees. First, the Vera Institute of Justice (Davis et al., 2002) surveyed a sample of police officers, supervisors,
and community leaders in the City of Pittsburgh regarding their perceptions about the outcome of the decree.
Generally, community leaders (40 percent) perceived that the police treated citizens better than before the
consent decree, that the decree was a useful tool in improving police practices and accountability, and that they
had greater confidence in the police. Citizen complaints declined by 50 percent overall. Supervisors reported
that community- oriented policing efforts were detrimentally affected. Their concern emerged from the fact
that they were strapped with a great deal of paperwork that kept them from spending quality time with their
officers and providing leadership. Although a majority of supervisors reported that the early- warning
intervention system assisted in identifying problem officers sooner, discipline of officers declined by 45
percent.

The most significant negative impact of the decree was felt by line officers. They commented that their
morale had been detrimentally affected and that they were more reluctant to use force and to make traffic
stops. While the use of sick time declined slightly, there was an increase in officers leaving the department.
Generally, officers reported that they were less likely to engage in proactive policing strategies. During the five
years studied, arrests declined by 40 percent, clearance rates of arrests fell by 35 percent, traffic summonses
declined by 35 percent, and arrests of African- American suspects dropped by 15 percent. There was no
noticeable change in the occurrence of Part I or Part II crimes.

Second, Stone, Foglesong, and Cole (2009) examined the post- reform trends of the Los Angeles Police
Department, which entered into a consent decree. The researchers examined the data on crime trends, arrests,
stops, civilian complaints, police personnel, and the use of force. They spent hundreds of hours as participant
observers riding with patrol officers, observing command officers, and assessing survey responses from
officers, command personnel, city residents, and arrestees. They found that about 83 percent of the residents
(regardless of race) indicated that the LAPD was doing a good to excellent job but that about 17 percent were
still dissatisfied with the department. The researchers reported that serious crime was down, that the frequency
of officers’ use of force had declined over several years, and that they did not see objective signs of de-
policing. The researchers concluded that, with both strong leadership and strong oversight of the police, cities
can enjoy respectful and effective policing, and that the LAPD is prepared to continue the positive trends in the
future.

Third, Chanin (2015) reviewed citizen complaints, trends in the use of force, trends in civil litigation, and
conducted a series of interviews with stakeholders in the Pittsburgh, PA, Washington, D.C., and Cincinnati,
OH, police departments to examine the outcome of the practices mandated during a § 14141 consent decree.
Chanin reported that overall the research did not show sustained organizational changes under federal
oversight and that the findings were mixed. Key reform outcomes in Pittsburgh remained flat during
implementation, including officer injuries and officer use of force, while allegations of officer misconduct
began to increase. These reform factors appeared to have a downward trend in Cincinnati, showing a level of
sustainability, and trust increased between the police and the community. In Washington, D.C., Chanin
reported a decline in the number of citizen complaints and civil liability lawsuits pertaining to the use of force,
but an increase in the frequency of officers engaging in misconduct and a rise in the number of officers facing
prosecution on criminal charges. Chanin concluded that organizational changes are not self- sustaining;
implementation does not in and of itself guarantee meaningful institutional change, and the assumption that it
does may undermine efforts to promote lasting reform.

Finally, Powell, Meitl, and Worrall (2017) used DOJ investigations, as reported on the DOJ’s website, and
examined the relationship between consent decrees and § 1983 litigation filings in 23 jurisdictions which were

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under § 14141 consent decrees. The researchers hypothesized that, with the implementation of many reform
components of the consent decree by the DOJ within the agency, there should be a corresponding drop in civil
litigation. They found that during the initial stages of implementing the consent decree reforms there was very
little change in the filing rates of § 1983 claims. However, as time progressed during the consent decree period
and after the termination of the consent decree, the filing rate was reduced by about 23 percent. The
researchers conclude that DOJ intervention through implementation of consent decrees assists in reforming the
targeted police agency and assists in reducing the filing of § 1983 lawsuits. They do acknowledge that more
research needs to be conducted on whether the changes are long lasting or risk lapsing in the long term.

Costs

The Division does not report the costs associated with entering into a consent decree or a MOA. Start- up and
maintenance costs linked with successful compliance with consent decrees are enormous. Some news reports
have investigated the costs of entering a consent decree. It has been estimated that total costs of a consent
decree can range from $10 million to $25 million a year (Associated Press, 2015; Elinson & Frosch, 2015; Jones,
Niquette, & Nash, 2016; Madhani, 2016; Maldonado, 2012; Miletch, Sullivan, & Thompson, 2012). The
Cincinnati consent decree cost approximately $13 million in start- up costs and more than $20 million annually
to ensure compliance with the stipulations (Walker, 2003). Without financial assistance from either the state or
the federal government, municipalities will be unable to implement or maintain the requirements of the
consent decree. Correctional departments have experienced the same problem in funding the changes required
by consent decrees. State and county budgets have had to be realigned and other funding priorities neglected in
order to comply with a consent decree. Taxes in some cities have been raised to pay the costs. On average, the
completion of a five- year consent decree is estimated to cost the governmental entity about $50 million. There
is one notable exception to this average; Kelly, Childress, and Rich (2015) reported that the Los Angeles, CA
Police Department paid out costs of about $300 million for the consent decree over 13 years.

The financial problem is a congressional one. Congress has repeatedly been criticized by state governors for
creating unfunded mandates for the states. The United States Supreme Court determined in Printz v. United
States (1997), in overturning a portion of the Brady Handgun Violence Prevention Act, that, by requiring state
governments to absorb the financial burden of implementing a federal regulatory program, Congress can take
credit for solving problems without having to ask their constituents to pay for the solutions and without
raising taxes. Even when municipalities are not forced to absorb the implementation costs, they are still blamed
for the burdensome effects. Having shifted the blame to local and state officials, Congress is not compelled to
consider the negative consequences of its mandate.

Conversely, it is costly for the DOJ to conduct investigations. Since the 1990s, conducting investigations into
allegations of misconduct in criminal justice agencies has been a priority for the DOJ (Department of State,
2005). While costs for conducting such investigations have not been published, the following questions arise:
“Does it make sound public policy to spend millions in conducting these investigations?” and “Does it make
good public policy for DOJ attorneys to spend their time and budget conducting these investigations?” Clearly
these are important questions that require detailed assessment if future investigations are performed.

Summary

It remains debatable whether operating correctional institutions or policing under a consent decree will prove
to be effective in bringing about lasting reforms to the criminal justice system (Ross & Parke, 2009). As a matter
of practice, patterns of police abuse of citizens or prisoners should not be condoned and an organizational
culture that allows such misconduct should be held accountable. Police and correctional officers must be
accountable for following the law and proper procedures in performing their duties. Governments cannot be
above the law, but federal intervention fails to provide the appropriate social policy to bring about long- term
and lasting reforms. The incremental gains are not justified by the immense costs and the long- term threat to
our system of democracy.

There are lessons to be learned from the consent decrees, and criminal justice managers should take these
lessons into consideration. Administrators are encouraged to voluntarily undertake the following proactive

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strategies in order to increase their accountability. These strategies align with risk management principles
discussed in Chapter 5 through Chapter 7 (Ross, 2016).

Because consent decrees require a monitor to review compliance and progress toward the stipulations,
administrators should first create a compliance officer position to oversee departmental risk management
activities. The compliance officer should report to the chief executive of the department (Schmidt, 2004; Ross,
2003a, b). This position could be a supervisor who would be responsible for ensuring that policies and practices
are implemented properly and who would track and assess pertinent departmental information. Second,
administrators should consider instituting a data tracking system designed to record information about the
performance of officers and supervisors. Systematically collecting and assessing data about calls for service,
arrests, use of force, traffic stops, and pursuits can be instrumental in providing police supervisors with
valuable information to use in leading the organization and provide early warning of marginal officer
performance. The same type of system could be used to track pertinent information in correctional institutions.

Third, administrators should voluntarily review and revise policies and procedures on a regular basis. As the
law changes, policies should also be changed in order for officers and supervisors to perform their duties
within legal parameters. Fourth, intersecting the data tracking system with the early intervention system has
the potential to transform the organizational culture and department. It can raise the standard of officer
conduct and supervisory accountability in maintaining proper officer performance and identifying problem
employees early. The system can provide supervisors with more flexibility in addressing appropriate
intervention strategies to keep unacceptable officer conduct from progressing further, thus requiring more
severe sanctions. It can also serve to maintain accountability of officers and supervisors and assist in reducing
allegations of failure to supervise or discipline officers.

Fifth, in compliance with the United States Supreme Court’s decision in City of Canton v. Harris (1989),
administrators should endeavor to provide their officers with ongoing training commensurate with their duties
and in accordance with state requirements. Training should be documented in the data tracking system and
designed to address frequently occurring situations, agency policies, and high- profile topics such as use of
force, pursuits, arrests with or without warrants, domestic violence calls, traffic stops, ethical behavior, and
conducting felony arrests. Correctional agencies should also address high- profile subjects such as use of force,
responding to special- needs prisoners, searches, disturbance control, special threat group management,
escapes, medical and psychological care issues of prisoners, responding to the mentally ill prisoner,
transportation of prisoners, and security functions, to mention a few. Sixth, agencies should ensure that
investigations into citizen and prisoner complaints and incidents of officer use of force are performed properly,
pursuant to policy and the appropriate legal standard. Administrators should consider using an external agency
to perform investigations when high- profile cases occur.

The compliance officer should perform regular inspections and audits to ensure that departmental
regulations are being followed to prevent any patterns of abuse from occurring. Implementing and maintaining
such a system provides a proactive framework with several benefits. Administrators as agency leaders must set
the tone for proper conduct and create a departmental culture that protects the constitutional rights of citizens.
Public education about such efforts could help to improve public confidence in police departments and protect
them from frivolous complaints. This assures the public that officers are adhering to departmental policies and
that supervisors are enforcing them properly, underscoring accountability. It demonstrates to the community
that the department has voluntarily undertaken a system of self- governance without being threatened by a
lawsuit or judicial intervention.

A fundamental component of the criminal justice profession is that administrators have the same
responsibility and right to manage their own departments as other professions do. Criminal justice agencies in
the United States have made significant changes since the 1960s, but the new era of consent decrees
overshadows and discounts these accomplishments. Rather than the decree stipulations becoming the
“standard,” leaders of criminal justice agencies will be well served to study the stipulations and work toward
making appropriate changes in their departments as warranted. Voluntarily incorporating these features and
changing agency practices as needed, and in accordance with state standards, exhibits a policy that underscores
professionalism, proactive leadership, and ensures that the agency can be accountable without forced federal
intervention. Information provided by the DOJ shows a trend of such investigations and resulting consent
decrees to be decreasing slightly. Proactive efforts by administrators, based on lessons learned from past

187

investigations, appear to be affecting these declining trends. Administrators are encouraged to review these
investigations and to continue to manage their departments in ways that place them in the best position to
reduce and defend against complaints of misconduct.

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References

Associated Press (2015, September 29). Cleveland estimates police department will cost $45 million. In News-
Herald.com, www.news-herald.com [accessed December 16, 2016].
Boyer, P.J. (2001, May 21). Testimony on police misconduct ignited the biggest scandal in the history of LAPD:
Is it the real story? The New Yorker, 60.
Chanin, J.M. (2015). Examining the sustainability of pattern or practice police misconduct reform. Police
Quarterly, 18 (2), 163–192.
Civil Rights of Institutionalized Persons Act (2012), Title 42 U.S.C. § 1997. Special Litigation Section of the Civil
Rights Division, www.DOJ.gov [accessed March, 2012].
Davies, T.Y. (1985). A hard look at what we know (and still need to learn) about the costs of the exclusionary
rule: the NIJ study and other studies of lost arrests. American Board Foundation Research, 610–645.
Davis R.C., C.W. Ortiz, N.J. Henderson, J. Miller, and M.K. Massie (2002, September). Turing necessities into
virtue: Pittsburgh’s experience with a federal consent decree. Vera Institute of Justice; 1–81.
Department of Justice (DOJ) (2001). Special Litigation Section. Agreement between United States of America
and Cincinnati, Ohio Police Department. www.justice.gov/sites/default/files/crt/legacy.
Department of Justice (DOJ) (2002). Special Litigation Section. Agreement between United States of America
and Cleveland OH, Police Department. www.justice.gov/sites/default/files/crt/legacy.
Department of Justice (2003). Principles of good policing: Avoiding violence between police and citizens.
Washington, DC.
Department of Justice (2012). Settlements and consent decrees (1997–2011). Washington, DC: Special Litigation
Section of the Civil Rights Division, www.doj.org.
Department of Justice (2017, January). The Civil Rights Division’s pattern and practice police reform work:
1994– present. Washington, DC: Civil Rights Division, U.S. Department of Justice, 1–53.
Department of Justice website (2012). Special Litigation Section of the Civil Rights Division, www.DOJ.gov
[accessed March, 2012].
DiIulio, J.J., Jr. (1990). Courts, corrections and the constitution. New York, NY: Oxford University Press.
Elinson, Z. & Frosch, D. (2015, July 15). Costs of police misconduct cases soar in big U.S. cities. Wall Street
Journal [accessed at www.wsj.com/articles/cost-of-police-misconduct-cases-soars-in-big-u-s-cities].
Glazer, N. (1979). The judiciary and social policy. In L.J. Theberge (Ed.), The judiciary in a democratic society.
Lexington, MA: Lexington Books.
H.R. Rep. No. 102–104, 102 Congress, 1st Session at 406, 1911, WL 206794, at 138–39 (1991).
Jones, T., Niquette, M. & Nash, J. (2016, February 23). Police misconduct costs prompt U.S. cities to increase
taxes. Bloomberg, www.bloomberg.com/new/articles [accessed December 16, 2016].
Kamisar, Y. (2003). In defense of the search and seizure exclusionary rule. Harvard Journal of Law and Public
Policy, 1, 119–138.
Kappeler, V.E. (1993). Critical issues in police civil liability, Waveland Press, Inc.
Kappeler, V.E., Kappeler, S.F. & del Carmen, R.V. (1996). A content analysis of police civil liability cases:
decisions of the federal district courts, 1978–1990. Journal of Criminal Justice, 21, 325–337.
Kaufman, H. (1960). The forest ranger: A study in administrative behavior. Baltimore, MD: Johns Hopkins
University Press.
Kelly, K., Childress, S. & Rich, S. (2015, November 13). Force reforms: Mixed results. Washington Post [accessed
at www.washingtonpost.com/sf/investigative/2015/11/13/forced-reforms-mixed-results].
Kim, E. (2002). Vindicating civil rights under 42 U.S.C. 14141: Guidance from procedures in complex litigation.
Hastings Constitutional Law Quarterly, 767, 1–34.
Levenson, L.L. (1999). Administrative replacements: How much can they do? Pepperdine Law Review, 879–881.
Levenson, L. L. (2001). Police corruption and new models for reform. Suffolk University Law Review, 1, 1–41.
Livingston, D. (1999). Police reform and the Department of Justice: An essay on accountability. Buffalo
Criminal Law Review, 2, 817–859.
Madhani, A. (2016, February 8). Ferguson: DOJ consent decree could cost city $10 million.

189

www.USAToday.com [accessed December 15, 2016].
Maldonado, C. (2012, August 14). Paying for the consent decree. Gambit Weekly, www.bestofneworleans.com
[accessed December 16, 2016].
McConnell, M.W. (1987). Why hold elections? Using consent decrees to insulate policies from political change.
University of Chicago Legal Forum, 295.
Miletch, S., Sullivan, J. & Thompson, L. (2012, May 18). DOJ plan to cost $14 million but feds say that’s simply
wrong. Seattle Times, www.seattletimes.com [accessed December 16, 2016].
Orfield, M.W., Jr. (1987). Comment: The exclusionary rule and deterrence: An empirical study of Chicago
narcotics officers. University of Chicago Law Review, 1015–1055.
Powell, Z.A., Meitl, M.B. & Worrall, J.L. (2017). Police consent decrees and Section 1983 litigation. Criminology
and Public Policy, 16 (2), 575–605.
Prison Litigation Reform Act (1996). Public L. No. 104–134, Statute 1321, Codified at 18 U.S.C. § 3626.
Rabkin, J.A. (1989). Judicial compulsions: How public law distorts public policy. New York, NY: Basic Books.
Ross, D.L. (1997). Emerging trends in correctional civil liability cases: a content analysis of federal court
decisions of Title 42 United States Code Section 1983: 1970–1994. Journal of Criminal Justice, 25, 501–515.
Ross, D.L. (1998). Examining the liability factors of sudden wrongful deaths in police custody. Police Quarterly,
4, 65–91.
Ross, D.L. (2003a). Civil liability in criminal justice (3rd ed.). Cincinnati, OH: Anderson Publishing Co.
Ross, D.L. (2003b). Emerging trends in police failure to train liability. Policing: An International Journal of
Police Strategies and Management, 2, 169–193.
Ross, D.L. (2005). A content analysis of the emerging trends in the use of non- lethal force research in policing.
Law Enforcement Executive Forum, 5, 121–149.
Ross, D.L. (2016). Assessing the trends in the application of the Civil Rights of Institutionalized Persons Act
(CRIPA) in prisons and jails: 2000 to 2014. Criminal Law Bulletin, 52 (6), 1720–1741.
Ross, D.L. & Parke, P. (2009). Policing by consent decree: An analysis of Title 42 U.S.C. Section 14141 and the
new model for police accountability. Police Practice & Research: An Interdisciplinary Journal, 3, 199–208.
Sandler, D. & Schoenbrod, D. (2003). Democracy by decree. New Haven, CT: Yale University Press.
Schmidt, W. (2004). Criminal justice compliance officer. Journal of Law Enforcement Executive Forum, 5, 1–14.
Silver, I. (2017). Police civil liability. New York, NY: Matthew Bender & Co.
Silveria, M.J. (2004). An unexpected application of 42 U.S.C. 14141: Using investigative findings for 1983. UCLA
Law Review, 601, 1–30.
Stone C., Foglesong T. & Cole C.M. (2009). Policing Los Angeles under consent decree: The dynamics of change
at the LAPD. Program in Criminal Justice Policy and Management, Kennedy School of Government, Harvard
University, 1–68.
U.S. Commission on Civil Rights (2000). Revisiting who is guarding the guardians? A report on police practices
and civil rights in America. Washington, DC: Author.
U.S. Department of State (2005). Second periodic report of the United States of America to the committee against
torture. Washington, DC.
Vaughn, M.S. & Coomes, L.F. (1995). Police civil liability under Section 1983: When do police officers act under
color of law? Journal of Criminal Justice, 23, 395–415.
Walker, S. (2001). Early warning systems for police: Responding to the problem police officer: Research in brief.
Washington, DC: U.S. Department of Justice.
Walker, S. (2003). New approaches to ensuring the legitimacy of police conduct: The new paradigm of police
accountability: The U.S. Justice Department “pattern or practice” suits in context. Saint Louis University Public
Law Review, 3, 1–43.
Walker, S., Alpert, G.P. & Kenney, D.J. (2000). Early warning systems for police: Concept, history, and issues.
Police Quarterly, 2, 132–152.
Wilson, J.Q. (1989). Bureaucracy: What government agencies do and why they do it. New York, NY: Basic
Books.
Worrall, J.L. (2001). Culpability standards in Section 1983 litigation against criminal justice officials: When and
why mental state matters. Crime & Delinquency, 47, 28–59.

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9
Personnel Issues and Liability

Liability and Sexual Harassment

Sexual harassment has become one of the most potentially critical management problems faced by the
administrator. The Equal Employment Opportunities Commission has annually reported on the outcome of
claims of sexual harassment in the workplace (U.S. EEOC, 2017). Over a 21- year period— from 1997 through
2016— the total number of claims filed has declined by 19 percent, averaging about 13,150 claims annually,
with 52 percent of the claims found to have “no reasonable cause” in a legal proceeding. No reasonable cause
means the court found the claim was unsupported by the evidence presented. About 85 percent of claims are
filed by females; claims filed by males have increased by 5 percent and account for 15 percent of the total.
Cases settled out of court account for about 11 percent of the resolved cases, with the trend increasing by 4
percent. The annual total payout averages about $43 million, a decrease of about 7 percent from 1997.

Claims of sexual harassment fall within the purview of Title VII of the Civil Rights Act of 1964 under the
general prohibition of sexual discrimination in the “terms, conditions, or privileges of employment.” Title VII
prohibits employment discrimination based on gender, race, national origin, or religion. Failure to act
appropriately not only has adverse effects for the agency but also may result in supervisory liability and
disciplinary action.

The courts are increasingly reviewing sexual harassment cases, and several have emerged in corrections. In
Speed v. Ohio Dep’t of Rehabilitation and Correction (1994) the court awarded a female correctional officer
$7,500 in damages for invasion of privacy based on a male supervisor’s observation of her from the ceiling of a
prison restroom. In Holland v. New Jersey Department of Corrections (2001) the court awarded $3.74 million to
correctional employees who alleged racial and sexual harassment and discrimination in the workplace.
Conversely, in Spicer v. Commonwealth of Virginia Department of Corrections (1995) the court of appeals
found correctional officials not liable for employees who made sexual remarks about a female employee’s
breasts when the department made a prompt and effective response to remedy the situation after she
complained. In addition, the Missouri Department of Corrections settled four sexual harassment cases over 18
months totaling $177,500 (Associated Press, 2004). The cases involved four female correctional officers who had
been harassed by male officers and supervisors. Collectively the cases showed a departmental culture of
policies and practices that condoned harassment and tolerated a “code of silence.” The DOC reported that it
disciplined 22 employees for sexual harassment over three years: three were fired, one was reprimanded, and
the rest were suspended for varying amounts of time.

Claims of sexual harassment have also emerged in policing. Ross (2000) reported in a review of more than
1,500 § 1983 published decisions from 1989 to 1999 that “police as plaintiff” is an emerging liability area that
cites administrators for failure to train officers. Throughout the 1990s a significant number of claims alleging
sexual harassment were filed primarily by female officers against their supervisors and fellow male officers.
Vaughn, Cooper, and del Carmen (2001) found, in a survey of 849 Texas police chiefs, that 12 percent of the
respondents had incurred a lawsuit from an officer within the preceding three years. These chiefs reported that
they lost 41 percent of the cases. They also reported that they are commonly sued for allegations of: sexual
harassment (25 percent), disciplinary actions (24 percent), employment discrimination (13 percent),
overtime/compensation/pay issues (10 percent), race discrimination/reverse discrimination (seven percent), and
disability discrimination (four percent).

The City of Los Angeles, California, was ordered to pay $1.7 million for Los Angeles police employees
claiming sexual discrimination and racial harassment (Associated Press, 2000). A total of 24 women and four
men alleged acts of discrimination, sexual harassment, or retaliation while serving on the force in cases filed

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from 1994 to 2000. The lead plaintiff claimed that she was subjected to racist remarks, sexist comments, and on
one occasion was grabbed by a fellow officer while other officers watched and laughed. It was alleged that
female officers who complained about sexual harassment were subjected to death threats and left stranded
without backup in emergencies. One female officer settled out of court for $175,000. Other cases involved male
employees who said their supervisors harassed them. Two officers claimed that they faced retaliation after
their wives sued the LAPD.

Other examples include two separate sexual harassment claims that were settled by the FBI in 1993 and in
2000. The Associated Press (1993) reported that a former female agent was awarded $300,000 because she
claimed that her superior harassed her for 10 years. This was the first sexual harassment case brought against
the FBI. In the 2000 case, the Associated Press reported that another former female FBI agent had settled a sex
discrimination claim for $150,000. She claimed that she had been harassed by co- workers and her supervisor
over a period of many years, denied equal job treatment, and was punished when she complained.

The Louisiana Department of Public Safety settled a claim of sexual harassment for $50,000 (Associated
Press, 2012). A civil action filed by the subjected woman claimed that, while working in the office as an
administrator for the department’s probation and parole district office in Thibodaux, harassment escalated
from inappropriate comments and touching to sexual assault. The Justice Department found at least four other
department employees, including a part- time internal affairs investigator, knew about her harassment but did
not report it. A Department of Public Safety and Corrections spokesperson reported that agency officials were
quick to act once the woman’s allegations were reported to them. As part of the settlement the department
agreed to modify its sexual harassment policies and training.

Sexual Harassment Defined

The Equal Employment Opportunity Commission (EEOC) guidelines on sexual harassment (29 C.F.R. § 1604.11,
1995) define sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature.” These factors constitute sexual harassment when: (1) such conduct is
made a term or condition of employment; (2) such conduct is used as a basis for employment decisions
affecting the person; and (3) such conduct has the purpose or effect of interfering with an employee’s
performance, or creates an intimidating, hostile, or offensive work environment. In Anthony v. County of
Sacramento Sheriff’s Department (1994) a female deputy stated a cause of action for sexual harassment
claiming a hostile work environment and inadequate training in department policy. In Farmers Insurance
Group v. County of Santa Clara (1995) the county settled out of court in a sexual harassment claim for
$1,283,000 for failing to train and develop policy on sexual harassment. A male deputy’s sexual harassment of
three female deputies, including one for whom he had training responsibility, was not within the scope of his
employment.

Types of Sexual Harassment

Sexual harassment claims have been separated into two categories. The first, quid pro quo sexual harassment,
occurs when a supervisor conditions an employment benefit or continued employment on the employee’s
acquiescence in sexual behavior. The liability associated with this term is limited to circumstances in which a
“tangible economic action” has been taken with respect to the employee.

The second type is known as “hostile or offensive work environment” sexual harassment. No employment
benefits need be gained or lost, and this type of harassment may be engaged in not only by managers or
supervisors but also by co- workers or persons who are not even employed by the employer. This type of
sexual harassment occurs when sexual jokes, graffiti, suggestive remarks, cartoons, physical interference with
movement such as blocking or following, or sexually derogatory comments create a hostile work environment.
Thus, if a supervisor said to an employee, “Go out with me and you will do well in the organization,” this
would be considered quid pro quo sexual harassment, even if nothing detrimental (or positive) actually
occurred. If no “tangible economic action” resulted, such a comment would be considered part of a hostile
work environment.

Evans v. Leelanau County Sheriff’s Department (1994) is illustrative of both types of sexual harassment.
Evans, a female correctional officer, was the victim of sexual harassment from the sheriff, her sergeant, and

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several correctional officers over a period of 18 months. The sheriff told her that she should lose weight, wear
her uniform so that it would outline her “figure” better, and that she had a nice set of “jugs.” The sheriff would
summon Evans to his office, where he would have open in plain view a lingerie catalog, and state that he
would “enjoy seeing her in one of those outfits.” The sheriff would occasionally brush up against her in the
hallway, and pat and stroke her hair. The department primarily employed males and there was only one
restroom. Male employees left pornographic magazines opened in the restroom and would also leave them
opened on the booking counter, dispatch area, officers’ control room, and virtually any area to which officers
had access. Pictures of nude women were pinned on several of the walls in the control room. Evans complained
to her sergeant and later to the sheriff, but nothing changed. There was no policy against sexual harassment
within the department. She filed a lawsuit asserting hostile work environment sexual harassment. The county
settled out of court for an undisclosed amount.

Plaintiffs have also filed legal actions alleging retaliation because they reported or filed a sexual harassment
complaint. In Barth v. The Village of Mokena (2004) a female police officer prevailed when she sued on a claim
of retaliation. Barth claimed that the chief customarily condoned a work climate of harassment. She alleged
that she was subject to ongoing incidents of harassment and, because she reported the incidents to supervisors,
she was treated differently. She claimed that she was denied assignments, subjected to unwarranted and
disproportionate disciplinary action, denied backup, and denied compensation for training time. Further, she
claimed that the chief discriminated against women because of gender and that the chief, as the policymaker,
created and perpetuated a hostile work environment. The chief denied the claims and filed a motion with the
court for a dismissal.

The court rejected the chief’s motion and held that he violated Barth’s constitutional rights as he was the
official policymaker. In that capacity, the court concluded, his actions expressed a widespread practice and
official policy that was well settled, amounting to a custom of official conduct, creating a hostile work
environment. Barth did not have to be any more specific with her claims to demonstrate examples of
retaliation for reporting sexual harassment.

United States Supreme Court Decisions

In three landmark decisions the United States Supreme Court set the standard for administrative liability in
cases alleging sexual harassment. The cases of Faragher v. City of Boca Raton (1998) and Burlington Industries,
Inc. v. Ellerth (1998) established the rule that an administrator is responsible for the misdeeds of an employee
when that employee uses the agency relationship to accomplish the misbehavior. The Court in Ellerth declared
that a tangible employment action was a “significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.” The supervisor’s action must inflict some direct economic harm. If the harassment does not
result in a tangible job detriment, an employer still may be liable for hostile work environment sexual
harassment engaged in by managers or supervisors. The Court stated that in such instances the employer may
affirmatively avoid liability if it can show that: (1) it used reasonable care to prevent and correct harassment
(such as having a policy on the subject), and (2) the employee unreasonably failed to make a complaint under
the policy or to avoid harm otherwise.

Justice Souter noted that the primary purpose of Title VII “is not to provide redress but avoid harm.” In
keeping with Congress’s intent to prevent sexual harassment, the Court decided to model its rule on the
premise that an administrator should be rewarded for making an effort to stop harassment. Along with the
administrator’s responsibility to thwart sexual harassment, the Court also recognized the victim’s
responsibility to avoid harm by using the agency’s anti-harassment policy.

In a third case the Court further expanded employer liability under Title VII. In Oncale v. Sundowner
Offshore Services, Inc. (1998) the Court held that sexual harassment includes same-sex harassment. Oncale
worked for Sundowner on an oil rig as a “roustabout” with an eight-man crew. He alleged that he was
subjected to sex- related, humiliating actions against him by members of the crew, including his supervisor. On
more than one occasion, he alleged, he was physically assaulted in a sexual manner and threatened with rape.
He finally filed suit against the company after repeated complaints to management were ignored. The district
court and the Fifth Circuit Court of Appeals found in favor of the company. Oncale appealed to the United
States Supreme Court and they granted certiorari.

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The Court examined the issue of whether same- sex harassment is actionable under Title VII. The Court held
that same- sex sexual harassment is clearly actionable. It ruled that “when members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed,”
such conduct is actionable. Moreover, the Court explained that Title VII is not a “civility” code designed to
remedy all interpersonal problems in the workplace. It forbids only objectively offensive conduct that alters the
conditions of the victim’s employment. The Court cautioned courts and juries to distinguish this type of
conduct from ordinary socializing in the workplace, such as “intersexual flirtation” or “male- on-male
horseplay,” which are not within the scope of the anti- discrimination law.

The decisions in Burlington and Faragher emphasize that if an employer shows that it acted reasonably to
prevent and correct sexual harassment, and that the employee unreasonably failed to avoid harm, it can avoid
liability. If, however, the employer fails to satisfy the Court’s requirements, liability will attach (Collins &
Vaughn, 2004). In some cases in which the employer is unable to avoid liability completely, the affirmative
defense may be used to mitigate damages if the employee could have avoided some but not all of the harm that
occurred.

Gonzales v. New York State Department of Corrections (2002) provides an instructive example of an
employer failing to take action when there was knowledge. A female correctional officer brought suit under
Title VII on allegations of sexual harassment and a hostile work environment. The court ruled in favor of the
officer, finding that she been subjected to a hostile work environment for more than a year and that the
department failed to take any action after she had repeatedly reported it to supervisory personnel. The court
found that she had incurred a pattern of offensive behaviors almost daily, which included male officers using
derogatory terms such as “nigger” and “spic” in her presence, and calling her and other female officers
“bitches.” The court concluded that such unchecked behavior amounted to a hostile work environment in
accordance with Title VII and awarded her $100,000.

In Pennsylvania State Police v. Suders (2004) the United States Supreme Court examined the issue of sexual
harassment and constructive discharge in a police department for the first time. Suders was a communications
operator for the Pennsylvania State Police (PSP) and claimed that, from the beginning of her employment, male
supervisors harassed her. Suders claimed that the harassment continued throughout her employment, which
eventually led to her quitting the job. She alleged that supervisors would talk about having sex with animals,
would talk about how to “satisfy” a man orally, and would make obscene gestures in her presence. She
complained to the EEOC in Pennsylvania but did not receive any relief. In retaliation she was arrested by the
PSP on false charges and, before they could officially file the charges, she resigned.

She filed a Title VII claim, alleging sexual harassment and claimed that she was constructively discharged
from her job. The lower court granted judgment for the department, stating that Suders never gave the
department a chance to respond to her complaints. The court did not address her claim that she was forced to
resign because of the hostile work environment. She appealed and the appellate court reversed the lower
court’s decision. The court determined that the lower court should have addressed her constructive discharge
claim and that constructive discharge was a tangible employment action, thereby making the department
automatically (and strictly) liable for the supervisors’ actions in the event Suders proved her sexual harassment
claim. The Supreme Court reviewed the case to determine whether the employer could be held liable. The
appellate court’s decision that a constructive discharge was always a tangible employment action was too
limiting.

In an eight- to- one decision the Court reversed the ruling and remanded the case to the lower court for
further proceedings. The Court reasoned that an employee’s decision to quit could be construed as a
constructive discharge where the abuse endured was so “intolerable” that resignation was deemed a “firing
response.” The employer, however, would have a defense to such a claim when it could prove: (1) it had a
“readily accessible and effective policy” in place for reporting and resolving sexual harassment complaints, and
(2) the employee failed to take advantage of the employer’s policy. The Court also held that the employer
would not have a defense, however, if the employee could demonstrate the decision to quit resulted from “an
employer- sanctioned adverse action,” which resulted in an official change in employment status or situation;
for example, humiliating demotion, severe pay cut, or transfer to a position where the employee would be
faced with unbearable working conditions.

In Jurgens v. City of North Pole (2007) a female dispatcher complained to the chief that Officer Jurgens had

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made sexual advances toward her and other dispatchers. Such offensive advances negatively affected her work
performance and created an intimidating, hostile, and offensive work environment. The chief performed an
investigation and determined that Jurgens’s conduct amounted to sexual harassment and he was fired. He
appealed the termination to the hearing board and the board upheld the termination and he filed a civil
lawsuit.

The police department’s policy indicated that sexual harassment refers to both the conduct and the effect of
the conduct. Conduct will be considered sexual harassment when it has the purpose or effect of unreasonably
interfering with an affected person’s work performance or creating an intimidating, hostile, or offensive work
environment. The court found that Jurgens’s conduct created a hostile and offensive work environment
supporting a claim of sexual harassment, and affirmed the board’s termination. The court ruled that the
dispatchers’ testimony supported their claims that Jurgens’s conduct made them feel unsafe, was unrelenting,
and adversely affected their work performance.

Sexual Misconduct by Correctional Employees

A related and emerging area for correctional supervisors is claims of sexual misconduct by correctional staff
with female prisoners. Correctional employee- on- prisoner misconduct involves various behaviors, ranging
from lewd comments to voyeurism to assault and to rape. Since 1999 the federal government, 41 states, and the
District of Columbia have passed laws criminalizing some types of staff sexual misconduct (GAO, 1999).
Supervisors must be diligent in investigating prisoner complaints about correctional officer sexual misconduct.

To investigate this emerging problem, researchers from the Government Accountability Office (GAO, 1999)
conducted a study of female prisoners and sexual misconduct by correctional staff. The study examined 506
allegations of sexual misconduct between 1995 and 1998 in four jurisdictions: California Department of
Corrections, the Federal Bureau of Prisons, the Texas Department of Corrections, and the District of Columbia.
Only adult female institutions were studied and not detention facilities. Of the 506 claims filed, 18 percent were
sustained, in which a high percentage of staff resigned or were terminated. All four jurisdictions were involved
in at least two civil lawsuits. Allegations ranged from verbal harassment, improper surveillance, improper
touching, and/or consensual sex. Allegations of rape or other types of forced sexual assault were relatively rare.
None of the jurisdictions had a tracking system in place that readily made available comprehensive data on the
topic.

The GAO also reported that at least 23 departments of corrections had faced class action or individual
damage suits related to sexual misconduct. During the 1990s the Justice Department filed civil lawsuits alleging
systemic sexual misconduct by male correctional staff in women’s prisons in two states (Arizona and
Michigan). Both suits were filed in 1997 under the Civil Rights of Institutionalized Persons Act of 1980, which
is designed to protect the rights of people housed in state and local government institutions. In 1999 the state of
Arizona and the Justice Department entered into a settlement agreement, which requires Arizona to revise
employee and prisoner training, strengthen investigative techniques, and requires male officers to announce
their presence prior to entering female housing units, when feasible. Moreover, the state of Michigan also
entered into a similar settlement with the Justice Department regarding male officers working in female
housing units.

The court in Women Prisoners v. District of Columbia (1994) found a pattern of sexual harassment by
employees, including assaults, a lack of response, and, at times, an inadequate response. Part of the harassment
involved unjustified invasions of privacy by male officers. Medical examination policies were not followed and
illnesses were not responded to. Prenatal care of pregnant prisoners was grossly inadequate, as were general
prison conditions. The evidence revealed a level of sexual harassment that was so malicious that it violated the
Eighth Amendment.

Although the GAO study focused on adult prison systems, county detention facilities have incurred civil
liability for officer sexual misconduct. In Ware v. Jackson County (1998) widespread and condoned misconduct
of jail employees created county liability when “rampant sexual misconduct” toward female prisoners was
proven. Refusal to terminate an assaultive employee, to monitor him after a termination recommendation had
been made, or to investigate several incidents demonstrated deliberate indifference. Compare, however,
Thomas v. Galveston County (1997), in which liability did not attach against the county. A female prisoner
alleged that a male detention officer sexually assaulted and harassed her during the three months she was

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confined in the jail. She did not complain to the officer’s superiors because he threatened her until after the
final assault. She notified a supervisor and an investigation began immediately. The investigation revealed that
several officers had assaulted the plaintiff and other female prisoners. Based on the investigation, the officers
were disciplined and one officer was terminated and criminally prosecuted. The county was granted summary
judgment because there was no evidence that the county knew about the officers’ conduct and disregarded it.
Female prisoners did not inform officials until after the last assault, and the investigation revealed the officers’
misconduct. The county had policies in place, and once they were informed of the misconduct they promptly
investigated, disciplined the officers, and terminated one officer.

Likewise, consistent discipline with officers by supervisors rebuffed claims of sexual assault in Hegenmiller
v. Edna Mahan Correctional Institution for Women (2005). Two female prisoners alleged that a correctional
officer sexually assaulted them over a two- year period of their confinement. When a captain learned of the
allegations he reported the allegations to his superiors and an investigation led to the termination and
prosecution of the officer. Further investigation revealed that another officer was involved and the first officer
had covered for his participation in the repeated assaults. The second officer was also fired.

Prior to the assaults the prison had instituted policies and training for the officers that prohibited sexual
contact with prisoners. Further, administrators verbally informed officers that they would be investigated,
fired, and prosecuted if they had sexual contact with prisoners. Prior to the firing of the two officers there were
six incidents involving six officers for such assaults on female prisoners. Five were fired and prosecuted. The
prisoners claimed that the administration knew of other incidents of sexual assault but failed to investigate
them and filed a lawsuit, claiming deliberate indifference to the risk of assaults. They also claimed that the
administration failed to provide training to officers and failed to implement adequate policies on prisoner and
officer contacts. The lower court granted summary judgment to the prison administration and the prisoners
appealed. The appellate court affirmed the lower court’s decision, concluding that the administration was not
deliberately indifferent to sexual assaults in the prison. Moreover, the court ruled that the administrators did
not fail to train the officers. The prisoners failed to show that the administration’s actions were linked to the
conduct of the officers who were fired. They also failed to show that they faced a substantial risk of harm to
which the administration acted with deliberate indifference. The court underscored the fact that the
administration vigorously enforced its own policy; had investigated, fired, and prosecuted officers in the past,
as well as in this incident. The court failed to find any evidence that the administration looked the other way
or tried to intervene on behalf of any officer who violated the no- contact rule.

In Boxer X v. Harris (2006) a male prisoner brought a civil rights action against a female officer who
allegedly made him strip and masturbate for her enjoyment. The prisoner claimed that the female officer
threatened reprisal if he did not perform the act. The district court dismissed the case and the prisoner
appealed. The appellate court reversed, holding that the prisoner stated a valid § 1983 claim for violation of his
privacy rights but it did not give rise to a claim of cruel and unusual punishment under the Eight Amendment.
The officer was terminated from her position.

A female detainee brought a § 1983 claim against a deputy whom she alleged sexually assaulted her in Kahle
v. Leonard (2007). The detainee claimed that on three different occasions the deputy entered her cell after
lockdown and forced her to perform intercourse with him. She alleged that after reporting the assault the
county failed to investigate the claims. The deputy filed a motion for summary judgment and the court denied
it. The court held that jail officials were aware of the deputy’s conduct, which created a substantial risk of
serious harm from the deputy, and exhibited deliberate indifference to the risk by not addressing the
misconduct. The court ruled that in 2002 (the year of the incidents) the law, for qualified immunity purposes,
was clearly established and that a supervisor who was deliberately indifferent to a substantial risk of such an
assault could be held liable under § 1983.

In Heckenlaible v. Virginia Peninsula Regional Jail Authority (2007) a female prisoner sued a correctional
officer and the regional jail authority, seeking to recover damages for injuries suffered as a result of an alleged
non- consensual sexual encounter between her and the officer. The prisoner alleged that the jail authority
should have been aware of the officer’s propensities for sexual assault and should have never hired him or
allowed him to supervise female prisoners. The court agreed that the officer’s conduct was unacceptable but
ruled in favor of the jail authority on the liability claims. The court held that, absent any evidence indicating
that the officer was known by anyone to have a propensity to commit sexual assault at the time he was hired,

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or evidence indicating that some testing would have revealed that the officer would pose a risk of danger to
prisoners, the jail authority was not liable. The court noted that the jail authority never received any
complaints from prisoners about the officer and that once they learned of the misconduct swiftly investigated
the matter and took appropriate action. The court granted summary judgment.

In Chao v. Ballista (2009) a female prisoner confined in a Massachusetts correctional facility filed a § 1983
claim against correctional officials, asserting that the officials failed to properly investigate and protect her
from sexual abuse from a correctional officer. The prisoner alleged that during her incarceration she was
subjected to numerous incidents of sexual misconduct by the officer and this continued even after the officer’s
assignment was changed. Legal counsel for the department moved to have the claims dismissed; the federal
district court rejected them and found in favor of the prisoner. The court found that the Prison Litigation
Reform Act was not subject to the prisoner’s claims requiring remedy of the allegations through institutional
means. The court held that the correctional officer and the prisoner engaged in 50 to 100 sexual encounters,
that the officer had sexually abused a second female prisoner, that the officer continued the sexual relationship
even after being reassigned, and that a prison nurse placed the prisoner on oral contraceptive pills during her
incarceration. The excessive amount of claims, severity of the abuse, and the numerous warning signs alleged
by the prisoner more than sufficiently supported a § 1983 claim.

Rantala, Rexroat, and Beck (2014), researchers from the Bureau of Justice Statistics, assessed sexual
victimization data from local jails and state and federal prisons from 2005 to 2011. Just over half (51 percent) of
the allegations involved non- consensual sexual acts or abusive sexual contacts of prisoners with other
prisoners, while 49 percent involved staff misconduct or sexual harassment directed toward prisoners. They
reported that while the overall number of allegations reported by correctional authorities rose from an
estimated 6,241 in 2005 to 8,763 in 2011, the number of substantiated incidents did not change significantly
from 885 in 2005 to 902 in 2011.

In Poore v. Glanz (2014) a female juvenile detainee confined in the medical unit of the county jail brought a
civil action against a detention officer and the sheriff alleging deliberate indifference to her health, in violation
of the Eighth Amendment prohibition of cruel and unusual punishment and based on repeated sexual assaults
by a detention officer. The federal district court denied the defendant’s motion for summary judgment. The
court held that evidence supported that the sheriff was aware of the risk of sexual assault by detention officers
as to female detainees housed in the medical unit of the jail and failed to take preventative measures to
alleviate the risks. The court held that the sheriff maintained a policy and practice of housing detainees in the
medical unit under single- staff supervision, which placed those detainees at a substantial risk of sexual assault
by detention officers.

Supervisory Liability

While some claims of sexual harassment against co- workers have been cited, a significant number have been
filed against the employee’s supervisor or administrator. An administrator is generally liable for sexual
harassment of his or her employees when the harassment results in a “tangible employment action,” such as
termination, demotion, or unwarranted transfer, or results in a severe or pervasive hostile work environment
created by the supervisor. Regarding conduct between co- workers, an employer is responsible for acts of
sexual harassment in the workplace when the employer knows, or should have known, of the harassment.
Supervisory liability will not attach when the supervisor can show evidence of acting reasonably to prevent
harassment by moving promptly to correct the behavior. In Williamson v. City of Houston, Texas (1998) a
police officer repeatedly complained to her sergeant that a male officer was sexually harassing her by
commenting on her body, pulling her hair, sticking his tongue in her ear, and trying to look up her skirt and
down her neckline. The female officer then asserted that, after she complained, the sergeant retaliated against
her by criticizing and taunting her, giving her a written reprimand, and transferring her to a less desirable
position. Rejecting the city’s claim that it should not be held liable because it did not have proper notice of the
harassment, the Fifth Circuit Court of Appeals held that, when the officer first complained to the sergeant, a
supervisor, the city was placed on notice.

In Wright v. Rolette County (2005) an appellate court reversed a lower court’s decision on a sexual
harassment and constructive discharge claim. Wright complained that she was subjected to sexist and offensive
language daily and was embarrassed that men in the department called her a “big- breasted Canadian

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secretary,” “a dizzy [expletive],” and “Canadian bacon.” The sheriff admitted that he participated in the name-
calling in front of others, including at a peace officers’ meeting. The sheriff also implied that there was a
camera in the female restroom, so she began using the restroom designated for female prisoners. The sheriff
allegedly made vulgar comments about Wright’s anatomy and requested a sexual favor. Wright claimed that
she objected to these comments but her objections were ignored. While she attended correctional officer
training she completed sexual harassment training but did not make a formal complaint, fearing she would lose
her job. She did complain to a county commissioner but he stated that there was nothing he could do. She also
complained to the county attorney, but the county did nothing to remedy the situation.

A week later Wright was diagnosed by her physician with high blood pressure, anxiety, depression, and he
prescribed her medication. Wright gave notice a few days later, alleging that the sheriff’s behavior caused a
hostile work environment. Wright was placed on paid leave pending an investigation, after which an attorney
concluded the comments were inappropriate but not unwelcome. Wright returned to work and quit three
months later, claiming she was constructively discharged. She sued, alleging sexual harassment, and the sheriff
requested qualified immunity; the lower court refused and he appealed.

The sheriff was not immune on Wright’s harassment charges, but the court did grant immunity on the
claims of constructive discharge. According to the court, the sheriff’s conduct could be considered sexual
harassment even if he did not touch Wright or make sexual advances toward her. Wright’s allegations showed
a violation of her constitutional rights, requiring her to seek medical treatment. Because the sheriff received
complaints from Wright and did nothing to address the allegations, liability attached. The court, however,
found that Wright failed to show that she was constructively discharged because of the harassment, and the
sheriff was granted qualified immunity. Wright failed to demonstrate that the working conditions were
intolerable for a reasonable person as it appeared that the harassment stopped after she returned to work.

Responding with an investigation to a claim of sexual harassment and following through with appropriate
discipline was useful in defending such a claim. In Rudd v. Shelby County (2006), Rudd, a deputy sheriff, filed a
complaint of sexual harassment with her superior and an investigation was conducted by internal affairs. Rudd
reported that a sergeant handcuffed her to a file cabinet in a bent- over position. She also reported that the
sergeant rubbed himself against her, draped a chain around her neck, and asked her over the intercom if it was
“too hot in the kitchen for her.” During the investigation Rudd was allowed to work in a separate facility to
avoid contact with the sergeant. Within a month the department reprimanded two of Rudd’s supervisors. The
sergeant was demoted to patrol officer, suspended for 30 days, and placed on probation for six months. The
sergeant ultimately retired under a settlement agreement. Rudd left her job within two weeks of the
harassment and sued, claiming that the sergeant’s actions constituted sexual harassment, gender
discrimination, and a hostile work environment under federal and state law. The court denied the county’s
motion for summary judgment and a jury awarded her $1 million in compensatory damages, back pay, and lost
future wages.

The county appealed the award and the appellate court reversed the judgment. Because the sergeant was
Rudd’s co- worker and not her supervisor, Rudd had to show that her employer knew or should have known of
the harassment and failed to take prompt action. The court agreed that the sergeant’s conduct was shocking,
but, because the county responded with good faith to safeguard Rudd, liability did not attach. The court
determined that Rudd did not prove that the county failed to take prompt action. Within several weeks the
sergeant was disciplined and the county followed through with the discipline.

In McCurdy v. Arkansas State Police (2004) the court examined whether a single incident of supervisor
harassment was enough to hold the employer strictly liable. McCurdy was a dispatcher for the Arkansas State
Police (ASP) and within a short time of her employment her supervisor began harassing her. The one- time
incident occurred in the dispatch room and McCurdy quickly left the room following the incident, where there
was offensive touching. McCurdy informed another dispatcher but would not report the episode until a higher-
ranking supervisor responded. A subsequent investigation found that McCurdy’s supervisor had violated
departmental policy against sexual harassment and he was subsequently disciplined. McCurdy filed a lawsuit
claiming a hostile work environment and sexual harassment. The court rejected the claim and granted
judgment for the department. The court concluded that there was no tangible employment action that occurred
and, because the department followed the principles in the Suders case by promptly investigating and
disciplining the harasser, liability could not attach.

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In Erickson v. Wisconsin Dept. of Corrections (2006) a prisoner raped a female payroll clerk and she filed a
lawsuit, claiming sexual harassment. Erickson worked in payroll and had limited contact with prisoners. The
only prisoners allowed in the building were trustees who performed janitorial duties. Prior to allowing
prisoners to work as trustees a file check was performed and prisoner Spicer was cleared, despite being
classified as high risk.

One evening Erickson worked late and Spicer began intimidating her and she immediately left. Erickson
reported the incident to the warden and she promised Erickson that nothing like that would happen again. Two
weeks later Erickson worked alone again and Spicer raped her and escaped in her car. Erickson sued the
warden for sexual harassment. At trial the jury found the warden liable and she appealed. The appellate court
affirmed, holding that the warden created a hostile work environment. The court held that Erickson provided
her employer enough information to trigger liability if the employer did not act to prevent or correct the
potentially harassing behavior. According to the court, once Erickson informed her employer of the first
complaint she was on notice about the complaint and did nothing to correct the situation. The warden did not
investigate the situation, did not interview any other employees, and did not question or remove Spicer from
the position. The court held that the warden failed in her duty to prevent and correct the incident from
occurring.

In Briggs v. Waters (2007) a former employee of a county sheriff’s department sued the county sheriff and
others, claiming to have been subjected to quid pro quo sexual harassment and fired in retaliation for spurning
the sheriff’s advances. The defendants moved for summary judgment and the district and appellate courts
denied the motion. The court held that the female employee showed that the conduct of the sheriff was
unwelcome, as required for a Title VII action and under § 1983, when she initially offered an excuse when
asked to accompany him on business trips, did not respond to a follow- up email, and by shrugging away when
the sheriff hugged her. The court denied summary judgment as the sheriff terminated the officer— who had
been convicted of obstructing justice in an unrelated matter and was appealing the decision— as a pretext for
termination based on her rebuff of his sexual advances. The court held that the officer established a prima facie
case of disparate discipline, in violation of Title VII and her equal protection rights, by showing that she was
terminated following her conviction for obstructing justice while two male officers convicted of drunk driving
were not terminated.

In Smith v. City of Chattanooga (2007) a female police officer filed a sexual harassment claim against her
supervising sergeant. Smith was assigned to work with Sergeant Grace and they got along well. Smith later
married and she alleged that Grace began to treat her differently. Smith asserted that Grace would frequently
pull her off patrol duty to perform computer data entry and he would sit in the room with her. Smith also
asserted that Grace began to spread rumors that she was having an affair with a fellow officer. Smith denied
the affair, claiming that the officer was a friend. Grace continued to spread the rumor throughout the
department, particularly when Smith and the other officer were present. Smith filed a sexual harassment claim
against Grace and Grace was placed on administrative leave during an investigation. He was later reinstated
and ordered to attend sexual harassment training. Although Smith and Grace did not work with each other,
Smith claimed that she felt hostility from Grace in the station house and filed a sexual harassment lawsuit. The
court found in favor of Grace and Smith appealed.

The appellate court found that Grace could not be held liable individually and upheld the lower court’s
verdict. The court also upheld the ruling concerning the city. The court opined that the city responded
appropriately by placing Grace on administrative leave when Smith complained, investigated the claim, and
mandated that Grace complete sexual harassment training. The court concluded that the city responded
appropriately and exercised reasonable care to prevent and promptly correct any sexually harassing behavior.

In Reed v. Cedar County (2007) the jail administrator, who was female, filed a legal action against the county
and the sheriff in his individual and official capacity, alleging that she was subjected to sex discrimination and
sexual harassment in violation of Title VII. She alleged that the sheriff repeatedly made sexual advances
toward her after she informed him to stop. The court found that the county had implemented reasonable anti-
sexual harassment policies, along with its reporting procedure and county- wide mandatory employee training
program. The jail administrator was fully aware of the procedures and had on many occasions provided
training to county personnel on the policies. The court also held that the jail administrator provided sufficient
evidence to hold the county and the sheriff liable for his conduct. The court stated that the jail administrator

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complained about the sheriff’s conduct on five occasions to the chief deputy and county supervisors, who
failed to investigate or take any corrective action in violation of Title VII.

In Miller v. State Dept. of Public Safety (2011), Diana Miller experienced several occasions of sexual
harassment during her employment with the Delaware State Police (DSP). In 2004 Miller was supervised by
Lieutenant Taylor in Troop 2 and Captain Laird. Not long after her arrival in Troop 2, Taylor began regularly
throwing small pieces of paper and candy wrappers down her blouse and stated that Miller should be his Kent
County “girl.” This type of behavior continued on and off through early 2007. In February 2007 the DPS
underwent reorganization and Miller reported directly to Captain Laird. Laird would frequently enter Miller’s
office and stare at her for long periods of time, also doing this from his office, which was in direct line of sight
of Miller’s desk. In March 2007 Laird began making sexual advances toward Miller and visited her home in
uniform when she was on medical leave and while medicated. Laird began groping Miller’s breasts and
attempted to kiss her. Several days later he texted Miller with sexually suggestive messages. Laird informed
Taylor to instruct Miller’s boyfriend to end the relationship with her or he would experience problems at work.

When Miller returned to work from her medical leave she was informed that several complaints had been
made against her by several employees, and she believed this was a result of the preferential treatment she was
receiving from Laird. During her 2006 annual performance evaluation she had received a superior review
overall. An investigation was performed and it was ruled “not substantiated.” During the investigation Laird
spoke up for her and his wife befriended Miller. The friendship began to intensify between Miller and Laird’s
wife to the point where the Lairds would visit Miller’s house for dinner and later ending with sleep overs. As
the relationship continued the Lairds became more controlling of Miller and Mrs Laird convinced Miller to
sleep with her husband (Captain Laird) as he was the only one who spoke on her behalf during the
investigation. Miller consented as she believed that if she refused she may lose her job. Miller attempted to
transfer out of Troop 2 to end the relationship with the Lairds but her request was denied. Later, on a trip with
the Lairds, Miller had non- consensual sex with Captain Laird. When the three returned to work Miller decided
to end the relationship with the Lairds, and Captain Laird contacted Miller and indicated that it would not be
good if she exposed the relationship.

In 2007 Miller filed a complaint against Taylor and Laird for sexual harassment and she was transferred to
the Delaware State Police Training Academy upon her own request. Laird filed for retirement during the
investigation and at a hearing it was determined there was sufficient evidence to support Miller’s sexual
harassment claims. Laird retired just before the conclusion of the investigation, prior to any discipline being
implemented. In 2008 Miller filed a legal action claiming sexual harassment and stated that she did not report
Taylor’s or Laird’s behaviors as she was intimidated by the two and that she feared she would be fired. Theresa
Schneider (who also had sexual relations with Taylor and Laird) testified at a deposition that there was general
hostility against women in the male- dominated DSP and that an “old school culture” of retaliation existed if
any woman made a complaint about gender- based discrimination. Miller further claimed that she also suffered
from stomach pains while the alleged harassment was occurring.

The Delaware Superior Court reviewed the allegations based on three forms of harassment under Title VII:
hostile work environment, quid pro quo sexual harassment, and retaliation. The court found that Miller’s claim
against Taylor failed as his behavior had ceased in 2006. On the second claim, of quid pro quo, the court found
sufficient evidence against Laird to support a classic allegation. The court noted that Laird was in a position to
utilize Miller’s vulnerable position to make her believe he could save her job if the internal investigation
against her did not go well, and he used his employment status to manipulate and coerce her. On the third
claim, of retaliation, the court granted summary judgment to the DSP as Miller voluntarily requested transfer
to the training academy and did not experience any adverse employment action.

In Sturdivant v. City of Atlanta (2015), Sergeant Sturdivant worked as the assistant commander for human
resources, was responsible for the employee payroll, and was the liaison between the Atlanta Police
Department and the city’s human resource department. Sturdivant began receiving text messages on her city-
issued cell phone from another officer and another sergeant commenting on her physical appearance and her
private life. Sturdivant did not have outside of work contact with the two and informed the sergeant that he
was being disrespectful. She did not report the text messages to her superiors. The sergeant continued to send
Sturdivant text messages commenting on her body and then sent her a photo of his erect penis, stating, “this is
what happens to me when I think about you.” Sturdivant told the sergeant that he had crossed the line and

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informed him she would be contacting the Office of Professional Standards (OPS). Sturdivant reported the texts
from the sergeant to two of her superiors and two days later she reported the messages and photo to OPS.
Sturdivant received another text message from the sergeant stating that “he had really blown it” and indicating
that he knew she had made a complaint. Sturdivant complained to OPS that her complaint had not been kept
confidential.

A few weeks later Sturdivant learned that OPS had not begun investigating her complaint, even though by
policy they were to initiate the investigation immediately, and she advised OPS that if they did not start the
investigation she would call an attorney. The text messages stopped from the sergeant but, because she did not
feel that OPS was taking her complaint seriously, Sturdivant contacted Deputy Chief Jones. Jones contacted
OPS about Sturdivant’s complaint and OPS advised that it was “just Sturdivant, and she would get over it.”
About three weeks after Sturdivant made the complaint OPS began the investigation and the sergeant admitted
he had sent the text messages and the photo. About three months later a disciplinary hearing was held and the
sergeant was found guilty of violating the city’s sexual harassment policy; almost 10 months after Sturdivant
filed the complaint to OPS the sergeant was suspended for 10 days and restricted from accessing the
headquarters building where Sturdivant worked without prior approval. The sergeant’s discipline followed the
sexual harassment policy.

Sturdivant filed a § 1983 action, claiming the City of Atlanta and the chief maintained a hostile and sexual
harassing work environment which violated her gender- based equal protection rights. The federal district
court dismissed her lawsuit and Sturdivant appealed to the Eleventh Circuit. The court held that in order for
Sturdivant to prevail on her claims she must show that the municipality’s action was taken with deliberate
indifference. The court affirmed the lower court’s dismissal of Sturdivant’s claim. The court ruled that the city
had a sexual harassment policy, that officers of the APD had training on the policy, and that the offending
sergeant had not received any prior sexual harassment complaints. Further, the court explained that after
Sturdivant made the complaint to OPS they investigated it, which ultimately resulted in the 10- day suspension
of the sergeant consistent with the sexual harassment policy. The court commented that although the
investigation and disciplining took about 10 months, Sturdivant did not present any evidence that these delays
were deliberate or based on her gender. She also did not present evidence that it was the practice of the
department to encourage female officers to resolve sexual harassment complaints informally and to purposely
drag out investigations on complaints made. The court concluded that “conclusory allegations without specific
supporting facts have no probative value.”

The Supreme Court has sent a clear message that Title VII requires employers to try to prevent sexual
harassment in the workplace and to provide appropriate discipline as warranted. These cases require
administrators not only to have a sexual harassment policy, but the agency must also aggressively enforce that
policy by promptly correcting any sexually harassing behavior (Rossi, 1998; Box 9.1). Supervisors must be
familiar with the agency’s sexual harassment policy and provide periodic training to all employees.

When the supervisor is on notice of sexual harassment, Title VII requires the administrator to take some
action to stop the harassment. This still is not sufficient to avoid liability. The administrator must prove that
the complainant unreasonably failed to prevent or correct the problem by taking advantage of the sexual
harassment policy or by correcting the problem in some other way. To meet this component of the defense,
administrators must encourage their employees to take advantage of the policy by promptly investigating and
documenting all complaints and by preventing retaliation against those who do complain. Further, in
accordance with the Supreme Court’s decision in Suders, if an employee can prove that he or she resigned as a
result of prohibited conduct by a supervisor, while the supervisor acted under his or her official capacity, the
employer will be automatically liable for that supervisor’s conduct; i.e., the employer will not have a defense to
a constructive discharge claim.

Box 9.1 Procedures to Follow when Investigating Harassment Claims

Fully investigate all complaints
Ensure that investigators are well trained
Upon receiving the complaint, do not delay the investigation
When practical, reassign employees involved in the complaint

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Use an impartial investigator
Remain neutral with the individual you are interviewing
Keep the investigation confidential
Interview all potential witnesses
Stay in touch with the complainant, accused, and witnesses
Take action, regardless of the investigation outcome
Take advantage of the opportunity to re- educate the department about harassment

As shown in Miller v. State Dept. of Public Safety, behavior in the workplace and after hours can be severe
enough to substantiate a claim of sexual harassment. Additionally, the ongoing decisions in claims of sexual
harassment by the courts routinely show that, in a claim of hostile work environment resulting from
harassment, a plaintiff employee must establish that he or she suffered intentional discrimination, the
discrimination was pervasive and regular, the discrimination detrimentally affected the plaintiff, and the
discrimination would detrimentally affect a reasonable person of the same gender in that position.
Administrators are encouraged to critically assess their current sexual harassment policy, assess how sexual
harassment claims are handled, and provide periodic documented training on policy and prevention strategies.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, and applies to agencies with
at least 15 employees. The Act is codified at 42 U.S.C. §§ 12101–12213 and provides that employers may not
discriminate in employment against qualified individuals with disabilities. The ADA protects individuals with
disabilities from discrimination in public services and accommodations. The Act does not repeal Title VII of the
Rehabilitation Act of 1973, nor does it preempt any statute or federal law that establishes a higher standard of
protection. The courts have the final opinion on ADA disputes. In its relatively short existence, the courts have
increasingly examined cases to interpret the meaning of the statute.

Practices and Activities Covered by the ADA

The ADA prohibits discrimination in all employment practices, including job application procedures, hiring,
firing, promotion, compensation, training, as well as other terms, conditions, and privileges of employment. It
applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment- related
activities.

Persons Protected by the ADA

Employment discrimination is prohibited against “qualified persons with a disability.” This includes applicants
for employment and employees. An individual is considered to have a “disability” if he or she has a physical or
mental impairment that substantially limits one or more major “life activities,” has a record of such an
impairment, or is regarded as having such an impairment.

Commonly recognized physical impairments that may interfere with the performance of life activities
include blindness, deafness, muscular dystrophy, cerebral palsy, and cardiac problems. Any mental or
psychological disorder generally recognized by medical authorities, such as schizophrenia or bipolar disorder,
that interferes with an individual’s performance or major life activities is a disability (Sutton v. United Airlines,
Inc., 1999). Individuals discriminated against because they have a known association or relationship with an
individual with a disability are protected.

A “qualified person with a disability” is one who meets legitimate skill, experience, education, or other
requirements of an employment position that he or she holds or seeks, and who can perform the essential
functions of the job with or without reasonable accommodation. Requiring the ability to perform “essential”
functions ensures that an individual with a disability will not be considered unqualified simply because of
inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job

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functions except for limitations caused by disability, the employer must consider whether the person could
perform those functions with a reasonable accommodation. If written job descriptions have been prepared in
advance of advertising or interviewing applicants for a job, this would be considered as evidence, although not
conclusive evidence, of the essential functions of the job.

The term “major life activity” means activities such as walking, sitting, standing, seeing, hearing, breathing,
performing manual tasks, caring for oneself, learning, and working. The inability to work at one job may not
count, because it is not substantial enough a limitation on the ability to work. A person with a disability must
also be “qualified.” This means someone who “satisfies the requisite skill, experience, education, and other job-
related requirements of the job and who, with or without reasonable accommodation, can perform the essential
functions of the job.”

“Essential functions” means job tasks that are fundamental and not marginal. Thus if a person with a
disability can do the essence of the job despite having a disability, the employer cannot discriminate against
that person because of the disability. The employer must also reasonably provide accommodations for the
disabled person that do not create an undue hardship for the employee. This means doing things like making
facilities accessible to persons with disabilities, restructuring non- essential parts of the job, altering work
schedules, modifying equipment or machinery, and providing someone to aid the disabled worker. An
accommodation is not reasonable if it imposes an “undue hardship” on the agency’s work by requiring
“significant difficulty or expense.”

The ADA does not protect individuals because of homosexuality, bisexuality, transvestitism, transsexualism,
pedophilia, exhibitionism, voyeurism, gender identity disorder not resulting from physical impairments,
compulsive gambling, kleptomania, pyromania, or psychotic substance use disorders resulting from current
illegal drug use. An alcoholic is protected, but not if his or her current use of alcohol interferes with
performance of the job or poses a direct threat to property or the safety of others.

Enforcement of the ADA

The Equal Employment Opportunities Commission (EEOC) is charged with enforcing the provisions of the
ADA. An individual with a disability who believes he or she has been discriminated against may file a
complaint with the EEOC, after which an investigation will be conducted. The EEOC has broad investigatory
authority, including subpoenaing witnesses and evidence. After the investigation the commission will state its
findings and can compel an agency to comply with the provision by hiring the person. The commission and/or
the complainant may submit civil actions against the agency. In cases of a political subdivision, the statute
reserves the decision to pursue remedies to the Attorney General (Colebridge, 2000). Compensatory and
punitive damages may be available in cases of intentional discrimination or when an employer fails to make a
good- faith effort to provide a reasonable accommodation.

The ADA and Job Descriptions

Although it is a prudent management strategy to have current job descriptions and to revise them periodically,
the ADA does not require employers to do so. Written job descriptions that are prepared prior to advertising a
position or interviewing applicants for a job will be considered as evidence along with other relevant factors.
Job descriptions should be reviewed to make sure they accurately reflect the actual functions of a job. Job
descriptions should also focus on outcomes or results of a job function, not solely on the way it is customarily
performed.

It is important that management specify essential job functions. The courts have been instrumental in
identifying the essential functions of police officers. Case law has established that firing a weapon and making
forcible arrests are essential job functions of a police officer (Davoll v. Webb, 1999). Driving a police vehicle is
also essential (Gonzalez v. City of New Braunfels, Texas, 1999), as is collecting evidence (Holbrook v. City of
Alpharetta, 1997). This does not totally quantify or exhaust other essential functions of the job, but specifying
core tasks can avert claims of discrimination under the ADA (see Box 9.2).

The EEOC suggests that, when drawing up essential job functions, an employer should consider written job
descriptions, the amount of time spent performing the function, the con- sequences of not requiring
performance of the job, collective bargaining agreements, and the experience of the job incumbent or

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incumbents in similar positions.

Box 9.2 Essential Job Functions of Law Enforcement Officers

Effect an arrest, using force if necessary and restraints
Physical aspects— running, climbing, jumping, swimming, rescuing, standing for prolonged
periods, searching, and investigating in various environments. Subdue resisting subjects with
control tactics. Pursue suspects on foot in different types of terrain. Lift, carry, and drag objects
and people
Communicate effectively, give directions/commands, give information, listen to people, and
testify in court
Conduct visual and audio surveillance for extended periods
Enter and exit vehicles quickly. Operate motor vehicles under normal and emergency conditions,
during day or night
Exercise independent judgment within legal requirements
Gather information in criminal investigations by conducting interviews
Load/unload and fire different types of weapons from varying positions
Use other equipment such as batons, aerosol sprays, flashlights, cones, etc.
Direct traffic for extended periods
Prepare written reports and other documents and perform mathematical computations
Read and comprehend laws, rules, regulations, and policies
Manage interpersonal conflicts to maintain order and restore peace

Must Employers Give Preference to a Qualified Applicant with a Disability?

An employer is free to select the most qualified applicant available and to make decisions based on reasons
unrelated to a disability. For example, an essential function in corrections is to be able to walk for extended
periods and climb stairs in a housing unit. Two people apply for a correctional officer position and the
employer administers a mandatory physical step test for five minutes and provides a reasonable
accommodation for the person with a disability. The person without the disability obtains a better score on the
performance test. The employer can hire the applicant with the better score.

Limitations on Medical Examinations Prior to Employment

An employer may not ask or require a job applicant to take a medical examination before making a job offer.
The employer cannot make any pre- employment inquiry about a disability or the nature or severity of a
disability. An employer may ask if an applicant has a driver’s license or can drive but may not ask questions
regarding a visual impairment. An employer may, however, ask questions about the ability to perform specific
job functions and may, with certain limitations, ask a person with a disability to describe or demonstrate how
he or she would perform these functions.

An employer may condition a job on the satisfactory result of a post- offer medical examination or medical
inquiry if this is required of all entering employees in the same job category. A post- offer examination or
inquiry does not have to be job- related and consistent with business necessity. If the person is not hired after
the medical examination, the reason or reasons for not hiring must be job- related and consistent with business
necessity. The employer must show that no reasonable accommodation was available that would enable the
person to perform the essential job functions, or that accommodations would impose an undue hardship. An
“undue hardship” refers to an accommodation that would be unduly costly, extensive, substantial, or
disruptive, or that would alter the operation of the business. A post- offer medical examination may not
disqualify an individual with a disability who is currently able to perform essential job functions because of
speculation that the disability may cause a risk of future injury.

Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the

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restrictions of such examinations. Information from all medical examinations and inquiries must be kept apart
from general personnel files as a separate, confidential medical record, available only under limited conditions.

Alcoholics and the ADA

While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a
person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a
disability and is protected by the ADA if he or she is qualified to perform the essential functions of the job. An
employee may be required to provide an accommodation to an alcoholic. An employer, however, may
discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job
performance or conduct. Moreover, an employer may prohibit the use of alcohol in the workplace and can
require that employees not be under the influence of alcohol.

Requirements to Make Reasonable Accommodation

An employer is only required to accommodate a “known” disability of a qualified applicant or employee. The
requirement generally will be triggered by a request from an individual with a disability, who frequently will
be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis
because the nature and extent of a disabling condition and the requirements of a job will vary in each case.

The ADA and Performance Standards

An employer can hold employees with disabilities to the same standards of performance as other similarly
situated employees without disabilities for performing essential job functions, with or without reasonable
accommodation. An employer also can hold employees with disabilities to the same standards of performance
as other employees regarding marginal functions, unless the disability affects the person’s ability to perform
those marginal functions. If the ability to perform marginal functions is affected by the disability, the employer
must provide some type of reasonable accommodation, such as job restructuring, but may not exclude an
individual with a disability who is satisfactorily performing a job’s essential functions.

Criminal Justice Cases Involving the ADA

The Ninth Circuit Court of Appeals rejected an ADA challenge to a correctional officer who opposed a policy
of assignment rotation in Kees v. Wallenstein (1998). The union sued on behalf of four Seattle correctional
officers to block officer rotation policies. One officer had a neck and back injury and could suffer paralysis if
reinjured. Another officer had residual injuries from a prisoner assault. A third officer had a toe amputated and
a fourth officer had a displaced vertebra. The district court found that the plaintiffs were not “qualified” for
their employment because of their “no prisoner contact” medical restrictions. The court of appeals agreed. The
court held that the “ability to restrain prisoners during an emergency is critical to jail security,” and jail safety
is jeopardized by the plaintiff’s inability to respond to emergencies. The court also noted that the bargaining
agreement provided that correctional officers were expected to rotate among several positions, most of which
require prisoner contact.

In Miller v. City of Springfield, Missouri (1998) the Eighth Circuit Court of Appeals upheld the use of the
Minnesota Multiphasic Personality Inventory (MMPI) for testing of police applicants. A woman who had
served as a police officer for 10 years moved to Springfield, Missouri, where she was hired as a dispatcher.
After twice failing the police officer agility test, she passed that portion, but scored a 66 on the MMPI- 2,
indicating above- normal depression. She sued under the ADA, claiming that management perceived her as
disabled and challenging the MMPI as not job related. The appellate court held she presented no evidence that
she was disabled, and the fact she was hired as a dispatcher meant the city did not perceive her as disabled.
Regarding the MMPI, the court held that it was appropriate as a psychological screening mechanism, was job
related, and was consistent with business necessity where the selection of individuals to train for the position
of police officer is concerned.

Two police officers and the union in New Jersey challenged a 12- year- old policy requiring officers of all

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ranks to be psychologically tested every three years in PBAL-319 v. Township of Plainsboro (1998). One of the
officers was later directed to participate in counseling for anger management. The officers filed suit, claiming
they were forced to reveal personal and private information that was unrelated to work performance and their
fitness for duty as police officers; the process violated their right to due process; and the screening caused
humiliation, embarrassment, emotional distress, anguish, and harm to their personal reputations. The court
dismissed the case, concluding that periodic psychological screening is constitutional, as long as management
provides for the privacy of officers’ files and records and respects their rights to due process. No appeal was
filed.

In Williams v. Philadelphia Housing Authority (2004) a 24- year veteran challenged his termination by the
department based on his mental instability. Near the end of his employment, Williams’ behavior became
erratic— yelling at co- workers and threatening them. PHA suspended him without pay and two days later
they ordered him back to work and he called in sick daily for several days. The PHA ordered Williams to
undergo a psychological exam with the departmental psychologist and he went on medical leave for two
months. The chief informed Williams that he would be exhausting his sick leave and annual benefits within a
month, and that if he needed additional leave he should request a medical leave of absence or it would be
deemed a voluntary resignation. Prior to the end of the sick leave the psychologist cleared Williams to return
to work on restricted duty, provided he would be prohibited from carrying a weapon. The chief contended that
he could not accommodate Williams because there were no non- firing bearing positions open at the time,
although there was one position open in the radio room. The chief again asked Williams to seek a medical
leave of absence in order to keep his job. Williams did not respond and the department fired him. Williams
filed several claims against the PHA, including an ADA claim for failing to accommodate his disability. The
federal court granted judgment to PHA, finding that Williams was not disabled within the meaning of the
ADA.

Williams appealed and the court reversed the decision. The court reasoned that Williams met the definition
under the ADA. Although Williams agreed that he should not carry a weapon, he argued that he could do
other jobs at the police department, such as working in the radio room. The court looked to the EEOC
regulations for guidance. The regulations stated that working was substantially limited where one was
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable training, skills, and abilities. Testimony at court
revealed that Williams’ disability did not preclude him from working in a “broad range of jobs.” Williams
requested the accommodation and the court agreed that he should be allowed to work in the radio room in
accordance with the provisions of the ADA.

In Almond v. Westchester County Dept. of Corrections (2006) a probationary officer, who was terminated
after she displayed hysterical behavior and underwent psychiatric assessment following training in disturbance
control and use of a baton, brought a civil action against the Department of Corrections alleging wrongful
discharge in violation of the ADA. She complained that the exercises were too hard and asserted that she had
been exhibiting nervous and erratic behavior throughout the day, crying and complaining that the training was
too tough. The Department of Corrections moved for summary judgment and the court granted the motion.
The court held that the officer failed to establish a bona fide claim of disability discrimination under the ADA,
on the theory that the employer perceived her to be either a drug addict or mentally ill. She did not prove that
the employer considered her to be a drug addict despite her statement that she had overmedicated herself, her
admission to taking some sort of drug on the day of the training incident, her supervisor’s order that a drug
test be administered, and assuming that the employer perceived her to be mentally ill. The court concluded she
did not show that the employer believed she was impaired from working or from performing some other major
life activity.

In Van v. Miami-Dade County (2007) a county detention officer with diabetes sued the county seeking
damages for discrimination pursuant to the ADA and the Florida Civil Rights Act. The county required a
physical examination of employees. At the examination the physician concluded that the officer’s diabetes was
not under control and that he would not be allowed to perform the safety- sensitive duties of a correctional
officer and would be placed on restricted duty. The physician informed the officer that he would be released to
full duty as soon as he was able to provide a He- A1c test result showing that his sugar level was 8.0 percent or
less. The officer filed a lawsuit claiming discrimination and the county moved for summary judgment. The

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court awarded summary judgment and held that the officer was neither disabled nor regarded as disabled, thus
defeating his discrimination claims under the ADA and the Florida Civil Rights Act, even though he was
regarded as unable to fulfill the correctional officer position. According to the court, the position of
correctional officer was a single, particular job, which could not constitute a substantial limitation of the major
life activity of working, and the county did not view the employee’s impairment of uncontrolled diabetes as a
substantial limitation on his ability to work in a broad class of positions. The court also ruled that the ADA did
not require the county to create a long- term or permanent restricted duty position for an allegedly disabled
correctional officer suffering from diabetes and thus the county was not required to alter its policy of six
months’ restricted duty followed by compulsory leave in order to reasonably accommodate the employee.

In Johnson v. Sedgwick Sheriff’s Department (2012) Johnson filed a claim under the ADA, asserting that he
was fired from his position as a detention officer for repeatedly sleeping on the job. He filed a pro se complaint
for damages in the United States District Court for the District of Kansas, raising claims under Title VII. He
alleged that the department fired him because he was black and had attention- deficit hyperactivity disorder
(ADHD), and that other employees who were not black or disabled slept on the job but were not fired. He
alleged that his ADHD caused him to “become distracted, bored, and drowsy in the midst of boring, repetitive
tasks,” and that he asked several times “to work in the lobby.”

The undisputed facts showed that Johnson was found sleeping on the job three times in 2007, and had two
suspensions and one counseling report in 2006 for three additional incidents of sleeping on the job. On each
occasion in 2007 he denied having been asleep. At the time of his termination Johnson was in the “reckoning
period” for five separate disciplinary violations, a period in which he was expected to remain offense- free.
Any of the three sleeping violations in 2007 would have been his fourth offense during the reckoning period,
and department policy allowed for dismissal after a third violation in a reckoning period. Department records
showed that, between 2001 and 2010, 30 detention deputies had been disciplined for sleeping. None had been
terminated, but none had more than three reported incidents. Moreover, Johnson had received a “marginal”
performance rating in 2007 and was on a 90- day probation period at the time of his firing.

The district court ruled against Johnson, concluding that he had failed to meet his burden to show that the
defendant’s reason for firing him was a pretext for racial discrimination, and he appealed. The Tenth Circuit
Appellate Court affirmed the lower court’s decision. In analyzing an ADA claim, the court stated, an ADA
claimant “must show that he (1) was disabled; (2) was qualified, that is, could perform the essential functions of
the job in question, with or without accommodation; and (3) suffered adverse employment action because of
the disability.” The court determined that there was no evidence that Johnson’s ADHD qualified as a disability
under the ADA, as he had simply alleged that he had the condition but provided no evidence that it
substantially limited a major life activity.

Alternatively, the court concluded that even if Johnson’s ADHD qualified as a disability under the ADA and
that his propensity to fall asleep was a symptom of his ADHD, he had failed to provide any evidence that a
reasonable accommodation would have enabled him to perform the essential functions of a detention deputy
which, among other things, requires visual monitoring of inmates and hence the ability to stay awake. The
court rejected Johnson’s argument that, rather than monitoring inmate pods, he could have been assigned to a
light- duty position in the jail lobby. The lobby position is one of many duty assignments that detention
deputies must be able to perform on a rotating basis, and the position is sometimes used when a deputy needs a
temporary light- duty assignment. Department officials provided evidence that creating a permanent lobby
position would interfere with its use as a temporary assignment, and that rotating deputies through a number
of positions avoids a variety of problems. The court noted that a temporary lobby assignment might have been
feasible, but creating a new, permanent lobby position was unwarranted because the ADA does not require an
employer “to accommodate a disabled worker by modifying or eliminating an essential function of the job.”

The court addressed the racial discrimination claim and found that Johnson failed to provide any admissible
evidence, such as affidavits or other sworn testimony, in support of the contentions in his response brief that
he was treated differently from other deputies who slept on the job. In particular, it concluded that there was
no evidence of disparate treatment, holding that Johnson had failed to meet his burden to show that the
defendant’s reason for firing him was a pretext for discrimination.

In Carothers v. County of Cook (2015) a former female employee brought a civil action against the agency
that provided oversight of the county juvenile detention center, alleging disability discrimination in violation

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of the ADA, as well as race discrimination, sex discrimination, and retaliation under Title VII. The court
granted the defendant’s motion for summary judgment and the employee appealed. The Seventh Circuit
affirmed and held that: the employee was not disabled within the meaning of the ADA; that evidence
supported the determination that the employee’s anxiety disorder did not prevent her from working with
youths; under the direct evidence theory, circumstantial evidence did not point to race discrimination; and that
the employee did not satisfy the legitimate expectations of her employer. Further, the court noted that during
the two months preceding the employee’s discharge she refused to follow instructions regarding submitting
required paperwork for her disability application, she did not schedule an appointment to return to work, she
ignored reasonable requests to submit or resubmit missing documents, and at time of her discharge she had
exceeded the allowed number of unexcused absences by more than 10 days.

ADA Considerations

Employers should be proactive in order to minimize potential exposure to litigation and thereby reduce the
claims filed under the ADA. First, an agency should review its equal employment opportunity, discrimination,
and harassment policy statements to ensure they include statements to the effect that discrimination on the
basis of disability will not be tolerated. Second, employers should provide training for their human resources
personnel as well as their first-line supervisors regarding the ADA, particularly with respect to accommodation
issues. Third, employers should review and update (or prepare new) job descriptions to ensure they include all
the essential functions of a particular position.

Moreover, these statements should be amended to include an explanation about a disabled individual’s right
to request accommodations. Managers should review all mandatory fitness standards applied to applicants to
ensure compliance with the ADA. Further, managers should ensure that medical information is retained in a
separate file from other non- confidential information.

While the ADA does not require maintenance of job descriptions, identifying essential job functions is
critical in determining whether an applicant or employee is a qualified individual with a disability entitled to
the protections of the ADA. It is a prudent management practice to develop and revise job descriptions
regularly. From job descriptions, all employees learn what the job requirements are and performance
evaluations should be based on these requirements. Managers should identify the core job functions of each
employee and categorize them as “major,” “essential,” or “critical” duties and “other” duties or responsibilities.
Employers should review their recruiting programs, particularly the notices and advertisements placed for
individual jobs, to ensure that they accurately reflect essential job functions.

Employers should revise their application forms and hiring and interview processes. Employers cannot ask
direct questions on an application about whether the applicant is disabled or has a disabling condition. During
an interview the applicant cannot be asked such questions about a disability. A review of all interview forms
and revisions should be made as warranted. Interviewers should be trained to ask questions related to the
essential functions of the job.

An employer may be held liable under the ADA for discrimination as a result of the use of a standardized
test, whether of physical or mental aptitude capabilities. In order to avoid liability for what appear to be
neutral testing programs, an employer must make sure that the testing used is job related and consistent with
business necessity. In other words, employers should review any testing programs to determine that the testing
is designed and administered to measure actual ability to do the essential functions of the job in question.

Wrongful Termination

Employment-at-Will

The law generally examines employment as a matter of contract, and the legal status of the employee will
dictate the legal requirements of supervisors’ interactions with employees. When issues of employment law
emerge, the first question to be analyzed is whether the relationship involves employment or another kind of
contractual relationship. In most, if not all, criminal justice agencies the employer has the right to control what
the employee does, when the employee does it, and how it is accomplished. This type of situation is considered

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an employment relationship.
In the public sector, when an employer hires a person the legal presumption that governs their working

relationship is that the employment is “at will.” This means that the employee works at the pleasure of the
employer and the employer may dismiss the employee at any time without explanation or legal penalty. This is
known as the “American rule.” In seventeenth-century England there was a presumption that employment was
for one year unless otherwise stated. The United States courts adopted the one- year rule after the American
Revolution. The courts re- examined this philosophy at the end of the nineteenth century as individual freedom
to contract expanded. The courts adopted the rule that an employee without a definite term of employment
was an employee at- will and may be discharged without reason (Avery, 1997).

Employment- at- will has, over the years, meant that the employer could terminate an employee for no
cause, good cause, or even for “causes morally wrong” (Hutten v. Waters, 1915). An example of this is
illustrated in many sheriff departments after an election. A newly elected sheriff enters office and fires
employees for no cause other than he wants to hire employees whom he believes will work best with his goals.
The terminated employees basically have no recourse or protections.

The example above is not completely accurate today, because there are no true employment-at- will
situations. The concept has been eroded by Congress and state legislatures, which have passed laws restricting
employers from terminating at- will employees. Federal statutes that modify employment- at- will include: the
Civil Rights Act of 1964, which prohibits discharge for discriminatory reasons; the Age Discrimination in
Employment Act, which prohibits discharge solely on the basis of age; and the Rehabilitation Act of 1973,
which bars dismissal of an otherwise qualified handicapped employee when reasonable accommodation of the
handicap can be made (Allred, 1995). State legislatures have also passed similar anti- discrimination laws that
protect employees as well as civil service commissions. Anti- discrimination laws, both state and federal, also
generally prohibit retaliation. Thus workers cannot be fired for filing discrimination charges against their
employers. Nor can they be discriminated against for other reasonable actions taken in opposition to
discrimination by their employers.

Employment today is protected in several ways. In many states, employees are represented by unions and
collective bargaining agreements with employers. Employees who have bargained for individual contracts of
employment or who are covered by employer policy manuals or other manifestations of promises that the
workers have job security are generally protected. Many employees are covered by their state personnel act,
which stipulates that an employee may not be fired for reporting improper government activities.
Whistleblowing statutes protect employees from retaliation if they report improper activity. Most states
provide that a career employee cannot be fired for failing to meet job performance requirements without first
showing prior written warnings documenting poor job performance. The system provides for hearings to
ensure that due process rights are guaranteed. Other exceptions to the employment- at- will rule include
formal written contracts, personnel handbooks, and implied good faith. Violations of these standards can
subject employers to civil litigation.

In Lee v. City of Detroit (2008) an inspector for the Detroit Police Department was demoted for
whistleblowing. Inspector Lee had secured numerous promotions during his 25- year tenure at the police
department, had won various awards and commendations, and had received only one disciplinary suspension.
He was the supervisor of the Gang Enforcement Section. In a meeting regarding the deployment of officers to
various schools used as voting precincts for Election Day in 2004, Lee’s commanding supervisor directed him to
deploy officers to specific schools in order to obtain funding from Homeland Security. This direction was
contrary to what Lee desired to do, as he was going to assign officers to schools that were designated as polling
locations. In the meeting, Lee’s supervisor interrupted Lee, grabbed his arm, and shouted: “Look nigger, assign
the officers to specific schools.” Both Lee and his commanding officer are black. One other inspector (who was
white) was also in the room. Lee wrote a memo to the deputy chief, informing him of the incident, hoping that
it would be investigated. Lee also was prepared to make a complaint with the United States Equal Employment
Opportunity Commission and possibly file a lawsuit.

Information regarding Lee’s memo was posted on a website, which angered the chief. One month later Lee
was transferred from the Gang Enforcement Section to the Records division. Lee believed that the transfer was
punishment for the memo and, with the transfer, lost the opportunity to work holidays and make triple pay. He
reported that several supervisors came to him and informed him to drop the complaint, and to not pursue legal

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action or his career would be destroyed and his chances for promotion to commander would be in jeopardy. A
meeting was convened to resolve the complaint, but several of the commanders stated that they knew nothing
of the memo and the request to investigate it. Lee then filed a lawsuit in federal court alleging violations of the
Whistleblower’s Protection Act. After he filed the lawsuit Lee was demoted to lieutenant and lost tangible
benefits. At a hearing regarding the lawsuit the chief stated that she transferred Lee to the Records division
because he failed to demonstrate competency and ability as the supervising officer of the Gang Enforcement
Section. The deputy chief stated he knew nothing about the memo, the complaint, or Lee’s transfer. Lee retired
shortly thereafter.

The City of Detroit moved for summary judgment, the court granted it, and Lee appealed. The appellate
court denied the appeal and stated that Lee failed to bring a legitimate Whistleblower Act claim. The court
describe the rules governing the Act, and stated a party must: (1) show that he was engaged in protected
activities as defined in the Act; (2) the party was subsequently discharged, threatened, or otherwise
discriminated against; and (3) that a causal connection existed between the party’s protected activity and the
discharge, threat, or discrimination. The court further explained that the party must report a complaint to an
outside body. The court concluded that Lee failed to plead his case to an outside party as he directed his case to
the deputy chief.

In McCormick, Jr. v. District of Columbia, et al. (2014), McCormick, an at- will employee and a correctional
supervisor, brought a civil action against the District of Columbia Department of Corrections for wrongful
discharge. During a disturbance in the detention center McCormick sprayed pepper spray on several prisoners
who ignored commands to return to their cells. At the same time a prisoner on the tier above McCormick
threw a “watery liquid substance” at McCormick. Later in the day the prisoner was identified, handcuffed, and
escorted to a segregation cell. A few days later the prisoner’s family contacted a city council member and made
a complaint that McCormick repeatedly struck the prisoner while he was in restraints and was held by several
other officers. The information was passed on to the internal affairs unit and they conducted an investigation.
Investigators requested to review the “report of significant incident” which is submitted after major use of
force by correctional officers. None of the reports submitted by the involved officers and by McCormick
reported that McCormick struck the prisoner. Officers were interviewed by IA investigators and only two of 10
officers witnessed the incident and stated they observed McCormick strike the prisoner in the head while
restrained. Also, a day after the incident, the facility physician examined the prisoner and found blood and
trauma on his right ear and trauma to his right jaw. Investigators concluded that McCormick struck the
prisoner at least once, violated the department’s use of force policy, and may have violated the district’s
criminal code for assaulting a prisoner. Based on the findings of the investigation, Director Brown placed
McCormick on administrative leave. Brown submitted a written request to the deputy mayor to terminate
McCormick, which was required in order to terminate an at- will employee. No copy of the letter was ever
produced, Brown proceeded with the termination, and there was no contention that the deputy mayor ever
disapproved the termination.

McCormick was terminated for assaulting the prisoner who was handcuffed and he filed a civil action for
wrongful discharge and claimed that he was denied due process and his liberty interests under the Fifth
Amendment. McCormick argued he was not provided a hearing about the charges made against him and
further argued that his “for cause” termination places him at a disadvantage when he applies for future
employment, which is a deprivation of his liberty interests. The federal district court denied summary
judgment for McCormick and he appealed. The appellate court held that McCormick’s right to due process and
to a hearing were not deprived as the district’s Personnel Act does not provide for a post- termination hearing
for at-will employees. The court ruled that the evidence clearly showed McCormick was terminated for
assaulting a restrained prisoner, which was in violation of the department’s use of force policy. Hence the court
ruled that it had been well settled that in the district an employer may discharge an at- will employee at any
time and for any reason or no reason at all, and therefore McCormick was not unlawfully denied a right that
he did not possess. The court also held that the termination of McCormick, an at- will employee, was not
sufficient to establish the deprivation of protected liberty interest and affirmed the federal district court’s
denial of McCormick’s motion for summary judgment.

It is improper to say today that a public employer can simply discharge an employee for any reason. It is
most accurate to hold that employment- at- will has been significantly modified.

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Due Process and Discharge

Many courts recognize an exception to the employment- at- will rule based on the tort of wrongful discharge.
This holds that an employer may not discharge an employee in violation of a public policy contained in a
statute (Brockmeyer v. Dun & Bradstreet, 1983). In its broadest sense, an employer may not discharge an
employee for reasons of malice, bad faith, or retaliation, because to do so contravenes public policy. Public
policy has generally been defined as no citizen can lawfully do that which has a tendency to be injurious to the
public or against the public good. Some have held that this principle implies a contract, including at- will
employees, and good faith. A bad faith discharge would breach the stipulations of the contract and conceivably
result in a civil lawsuit (Allred, 1995).

Wrongful termination lawsuits emerge when an employee believes the employer has terminated him or her
for no legitimate reason in violation of his or her constitutionally protected rights secured under the Fourteenth
Amendment. The Fourteenth Amendment protects individuals from being deprived of property or liberty
without due process of law. This language has been linked to a property interest in employment matters
(Cleveland Board of Education v. Loudermill, 1985). Property interests arise when a public employer
demonstrates a reasonable expectation of ongoing employment because the employer has created a binding
policy that discharge will occur only for stated reasons, such as for just cause.

Property interests or rights in employment are created by acts of the employer. Property rights are
established by state laws, local ordinances, or statutes, not by the Constitution (Board of Regents v. Roth, 1974).
If one of these items protects the public employee against discharge except for just cause, the employee will
automatically have a property interest in employment. Employee handbooks, policy manuals, and contracts
normally create property interests for employment purposes. If a claim of wrongful discharge emerges, the
court will examine state laws to decide whether the employee has a valid claim to employment. The United
States Supreme Court stated in the Roth decision that “for the proposition to demonstrate a property right in
employment, the employee clearly must have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement.”

It is important to recognize that a property interest only applies to continued employment. A right to a
particular position or duties is non- existent. Management may reassign employees to new responsibilities or
duties without infringing on the property rights of their employees (Avery, 1997).

Employers may not infringe on the property rights of vested employees without first ensuring due process of
law. Vested employees are those who have successfully completed the probation-ary status of the department.
Probationary employees do not have a property interest.

Employers may not discharge employees with property interests without first providing due process. The
central feature of due process is a hearing. In Cleveland Board of Education v. Loudermill (1985) the United
States Supreme Court held that the “root requirement of the due process clause is that an individual be given
an opportunity for a hearing before he is deprived of any significant property interest.” Loss of property
interests can involve disciplinary actions such as suspensions, severe disciplinary actions, and dismissal. This
means that a hearing must be conducted prior to the termination of employment. This protection is to ensure
that employees with property interests are granted the essence of fundamental fairness. This provides a balance
to the interest of the employee in retaining his or her job and the employer’s interest in simultaneously
reducing the risk of error.

Box 9.3 Proactive Strategies for Avoiding Wrongful Discharge Claims

Develop employee handbooks that describe at- will employment
Develop written guides and statements regarding discipline and termination policies
Develop and maintain a progressive disciplinary system and consistently enforce it
Distribute discipline statements to all employees
Train all supervisors and investigators in the disciplinary process
Performance appraisals should be candid and should reflect the employee’s actual job
performance
Progressive discipline that is properly documented provides evidence that a good- faith effort was

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made to give an employee an opportunity to correct performance
Provide a reasonable opportunity for an employee to meet agency expectations
When practical, suspend employees pending an investigation by an impartial supervisor—
thoroughly investigate any dispute prior to taking action
Discharge decisions should have a second review by another person
Document all complaints, investigations, and supervisory actions with an employee
If possible, allow an employee to resign instead of being fired
When feasible, resolve disputes through arbitration or mediation

A hearing is required, but it need not be formal. The Court in Loudermill stated “that a pre-termination
hearing, though necessary, need not be elaborate. The formality and procedural requisites for the hearing can
vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.”
Due process also requires that advance notice be given to the employee before the hearing and the notice
should be given in writing at least 24 hours prior to the actual hearing. The charges should be conveyed to the
employee prior to the hearing. There is no requirement that an attorney be allowed during the hearing or that
the employee be given the right to consult with one during the hearing. Any investigatory reports that have
been submitted should be given to the employee. Documentation of the hearing and transcripts should be
recorded. Other proactive strategies for administrators to consider are identified in Box 9.3.

After a discharge the employee must be granted a full hearing before an impartial decision-maker. This can
be someone inside or outside the department. Legal representation and cross-examination of witnesses should
be allowed. The final decision should be placed in writing and the employee informed that he or she may file
an appeal. These procedures will be useful in ensuring that the employee is provided with the requirements of
due process and will place the employer in a more defensible position should the employee file a civil lawsuit
for wrongful discharge.

In Garner v. Gwinnet County (1999) the court upheld the discharge of a mentally unstable police officer. The
police officer’s performance began to deteriorate and he developed suicidal thoughts and a vivid fantasy of
killing the chief. The chief had him examined by three different doctors, who determined that he was unsuited
for police work. One doctor stated that the officer was burned out and should not be on the street carrying a
weapon. The chief demoted him to animal control officer. The officer demanded reinstatement and filed an
EEOC complaint. The officer’s behavior deteriorated further and the chief fired him after giving him a hearing.
The officer filed a legal action demanding reinstatement and sought damages for emotional injuries from
observing animals being euthanized.

The court found in favor of the chief, holding that he had competent medical evidence that the officer posed
a threat to himself and others. The chief’s actions were proper, the court ruled, because it would have been
reckless to reinstate an employee whom defendants perceived posed a threat to the community.

In Spades v. City of Walnut Ridge (1999) a police officer attempted suicide by shooting himself in the head.
Because of his “violent use of a firearm” and the city’s exposure to liability, he was terminated. After receiving
counseling, medication, and treatment for his physical and psychological injuries, the officer sought
reinstatement. When rejected he filed a civil action claiming that he had been wrongfully discharged, and filed
a claim under the ADA. He alleged that he had been illegally terminated because of his disabling depression
and that management failed to grant him federally mandated medical leave.

The court found that the city had a legitimate reason for terminating the officer. The court reasoned that
increased potential liability associated with an employee’s past behavior is a legitimate concern of the city,
particularly when there is a known violent history. Claims of improper hiring, supervision, and retention loom
large in the minds of employers and their lawyers. Liability did not attach because the court held that the city
articulated a non- discriminatory reason for the officer’s termination.

The question of providing a pre- suspension hearing was examined by the United States Supreme Court in
Gilbert v. Homar (1997). A campus police officer was charged with felony drug possession and suspended
without pay pending an investigation. The officer filed a civil action, claiming that his property interest rights
and his Fourteenth Amendment due process rights were violated because the university failed to give him a
pre- suspension hearing. The Court held that the due process clause of the Fourteenth Amendment does not

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require a formal or informal hearing prior to a temporary deprivation of an officer’s property interest. The
Court did hold that a post- suspension hearing was required within a reasonable period.

In Pittman v. Wilson County (1988) the county had adopted a personnel resolution to govern employment
decisions. The resolution regarding employment was placed in an employee handbook and distributed to all
employees. A central feature of the resolution dealt with disciplinary procedures for errant employees, and it
stated that an employee may be dismissed by a department head or the county manager. The clause also
stipulated that employees could be dismissed only for causes related to poor job performance after three prior
warnings. The policy did allow for a pre- dismissal conference between the supervisor and the employee.

Dispatcher Pittman of the Wilson County Sheriff’s Office was accused of misconduct by her supervisor.
Instead of being fired, she agreed to resign. Three days later she contacted her former employer and
complained that she was coerced into resigning and demanded a discharge hearing. The county refused and
she filed a civil action claiming that her Fourteenth Amendment rights were violated in that she was denied a
pre- dismissal hearing before an impartial official.

The district court found in favor of the county, holding that Pittman had no property interest in her job and
that she had not been wrongfully discharged from her job as a dispatcher. She appealed and the Fourth Circuit
Court of Appeals affirmed, holding that she was an at-will employee with no property interests in continued
employment, citing Roth. Central to the court’s holding was the county’s resolution on disciplinary actions.
The court concluded that resolutions under North Carolina law were not binding because they were not in an
ordinance or a state statute.

The United States Supreme Court affirmed a city’s termination of a police officer in City of San Diego v. Roe
(2004). Roe was an officer with the San Diego Police Department. He made a video showing himself taking off
a police uniform and engaging in a sexual act. He sold the video on eBay, which was discovered by his
supervisor. Internal affairs conducted an investigation and found that Roe’s conduct violated the department’s
policies. The chief ordered him to cease displaying, manufacturing, distributing, or selling any sexually explicit
material or engaging in any similar behaviors. Roe ignored the order and he was fired for disobedience of
lawful orders. Roe sued, claiming the firing violated his First Amendment right to free speech. The district
court granted summary judgment to the city but the appeals court reversed, finding Roe’s conduct was
protected as citizen commentary on matters of public concern because his conduct took place off duty and was
unrelated to his job.

The city appealed to the United States Supreme Court and they reversed the appellate court’s decision. The
Court concluded that Roe’s conduct was not a matter of public concern. Public employees had a First
Amendment right to speak on matters of public concern, which were typically matters concerning government
policies of interest to the public. However, Roe’s expression did not qualify as a matter of public concern
because his actions did nothing to inform the public about any aspect of the department’s operation, workings,
or functions. Moreover, even though Roe’s actions occurred off duty, his expression was linked to his official
status as a police officer and was designed to exploit his image as an employee. Therefore there was no basis
for finding that Roe’s expression was of concern to the community, so his speech was not protected by the First
Amendment.

The levels of punishment and the termination of detention officers who abused a juvenile detainee were
examined in Stroud v. Shelby County Civil Service Commission (2006). Thomas and Stroud were investigated
for using excessive force against two juvenile detainees in the jail and were fired. It was also determined that
they were untruthful during the investigation. Both officers appealed to the civil service board. After the
hearings the board concluded that both officers used excessive force and had been untruthful during the
investigation, warranting their dismissal. The officers appealed the termination and filed a lawsuit for
wrongful discharge. The court found that there was evidence to support the claim that the officers were
untruthful during the investigation, but found no evidence to support the excessive force claim against Stroud.
The court found that the board treated the officers differently from other employees who had received lesser
sanctions for similar conduct. The lower court sent the matter back to the civil service board. After a hearing
the board reinstated their earlier decision and the officers appealed again. The lower court overturned the
board’s decision and found that the officers were treated differently from officers in the past and should
receive a 30- day suspension without pay.

The civil service board appealed and the appellate court reversed the lower court’s decision, upholding the

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board’s decision to terminate Stroud. The court found that there was sufficient evidence to support the charge
that Stroud used excessive force and his termination was warranted under the county’s rules. There was a
video showing Stroud using excessive force, as well as statements from fellow officers. The investigation report
verified the claims, and the officer was found to be untruthful.

In McKee v. City of Hemingford Village Board of Trustees (2008) the chief of police challenged his
termination for insubordination and brought a legal action against the city. The police department consisted of
three employees, including the chief. The chief requested vacation time well in advance and the city board
approved it. Between the time of the approval and the date of the chief’s vacation, two of the officers resigned.
The city board met and canceled the chief’s vacation and informed him he would be terminated if he did not
report for work. Another board meeting was held and the chief was asked if he was going to comply or take his
vacation. The chief responded by stating that he was in the process of finding officers to cover for him while he
took his vacation. The board took a vote to terminate the chief, it was approved, and the next day the chief
received a letter of termination from the board.

The chief requested a hearing to appeal the termination decision. The board granted the hearing appeal,
hired an independent attorney to hear the appeal, and the chair of the board who wrote the letter excused
himself. The board met and rejected the chief’s appeal and he filed a civil lawsuit. The chief argued that he was
denied sufficient due process during the time prior to his actual termination. The city argued that the chief was
only entitled to a more limited process, including oral or written notice of the charges against him, an
explanation of the city’s evidence, and an opportunity to present his side of the story. The court noted that the
chief received oral notice of the charges against him at two different board meetings and was allowed to
present his side of the story at the second meeting with the board. The court upheld the board’s termination
decision, ruling that the chief was provided with sufficient due process as he met with the board on two
meetings and the board also provided him with an opportunity to appeal the decision.

In Vaughn v. City of Puyallup (2008) Officer Vaughn was fired for leaving the scene of an arrest, failing to
follow department policies, and lying. Vaughn was an eight- year veteran with the police department and
responded to a shoplifting call at a Sears store. At the store Vaughn failed to perform a criminal history check
of the detained shoplifter and informed his supervisor that he was leaving the store, leaving the suspect in the
custody of store security. Vaughn’s sergeant responded to the store, performed a check, and learned that the
suspect had an active warrant out for his arrest on several charges of violence. The sergeant filed a report to his
supervisor indicating that Vaughn violated department policies by leaving the scene and lying to him. Vaughn
was notified that an internal investigation was being conducted to determine whether he had violated policy
regarding his handling of the Sears call. After the investigation a hearing was provided for Vaughn and he
submitted a written statement about the incident but refused to answer any questions. The hearing officer
informed Vaughn that he would be provided with the decision in a few days. However, internal affairs
continued to investigate the incident and provided a second hearing that Vaughn did not attend. He did submit
a written protest stating that the second hearing was biased and unfair. At this time Vaughn and other officers
sent confidential letters to the city council and the mayor calling into doubt the leadership ability of the chief
and accusing the chief of being biased and using unfair retaliation against officers.

The chief learned that one of the letters had been submitted by Vaughn and reopened the Sears store
investigation. The IA investigator concluded that Vaughn violated policy and recommended to the city
attorney that Vaughn be terminated for mishandling the incident. The chief informed Vaughn of a third
hearing and the possible discipline measures that might result. Vaughn chose not to attend the hearing but
submitted a written statement. The chief issued a memo to Vaughn informing him of his termination and
Vaughn appealed to the city’s civil service commission. The commission held a four- day hearing, found that
Vaughn committed inappropriate actions during the Sears incident, but concluded that termination was
inappropriate and recommended suspension, with a demotion and a decrease in pay. The chief agreed and
Vaughn resigned after the suspension. Vaughn then filed a legal civil action alleging that the city denied him
proper due process during the time of the disciplinary hearings.

The city requested summary judgment. Vaughn primarily argued that he was deprived of a meaningful
forum to present his side of the story. He claimed that although he was given three hearings (in accordance
with Loudermill) those hearings were meaningless because the chief and others were biased and could not
provide him with a fair proceeding. The court stated that in order to determine whether a city employee was

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given due process in a disciplinary hearing a court must balance the interest in retaining the employee against
the risk that the employee might be erroneously terminated. The court found Vaughn’s arguments
unpersuasive and held that he had not presented any evidence to show that he would be unfairly treated had
he represented himself at the hearings he chose not to attend. The court ruled that the city properly
investigated the incident, afforded Vaughn the proper due process through three hearings, and rejected his
arguments, granting the city’s motion for summary judgment.

In Staub v. Proctor Hospital (2011) the United States Supreme Court granted certiorari to determine the issue
of supervisor liability regarding the wrongful discharge of an employee who was a military reservist. Staub
was employed by Proctor Hospital as a technician and was also serving in the United States Army Reserve. His
immediate supervisors were hostile to his military obligations, which required him to be away from the
hospital intermittently. Staub was placed on a period of corrective action for poor work performance and one
of the supervisors determined that Staub failed to improve in accordance with the corrective plan. The director
of human resources, Buck, reviewed Staub’s personnel file and decided to fire him. Staub filed a grievance
against Buck claiming that one of the supervisors fabricated the allegation underlying the corrective action out
of hostility toward his military obligations, but Buck adhered to her decision. Staub sued Proctor under the
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids an employer
to deny “employment, reemployment, retention in employment, promotion, or any benefit of employment”
based on a person’s “membership” in or “obligation to perform service in a uniformed service,” and provides
that liability is established “if the person’s membership … is a motivating factor in the employer’s action.” He
claimed that the two supervisors were motivated by hostility to his military obligations, not Buck, and that
their actions influenced Buck’s decision. Staub filed a legal action and a jury found Proctor liable and awarded
Staub damages, but the Seventh Circuit Appellate Court reversed, holding that Proctor was entitled to
judgment as a matter of law because the decision-maker had relied on more than the supervisors’ advice in
making her decision.

Staub appealed the decision to the Supreme Court and in an eight- to- zero decision the Court found in favor
of Staub (Justice Kagan abstained). Writing for the Court, Justice Scalia opined that if a supervisor performs an
act motivated by anti- military animus that is intended by the supervisor to cause an adverse employment
action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable
under USERRA. In construing the phrase “motivating factor in the employer’s action,” the Court started from
the premise that when Congress creates a federal tort it adopts the background of general tort law. The Court
ruled that the Seventh Circuit erred in holding that Proctor was entitled to judgment as a matter of law. Both
supervisors acted within the scope of their employment when they took the actions that allegedly caused Buck
to fire Staub. There was also evidence that their actions were motivated by hostility toward Staub’s military
obligations, and that those actions were causal factors underlying Buck’s decision. Finally, there was evidence
that both supervisors had specific intent to cause Staub’s termination.

The decision of the Court demonstrates that tort law requires a showing of intent and specific consequences
of a supervisory decision that adversely impacts an employee’s continued employment. Further, when such
actions are underscored with malicious intent by supervisors acting within the scope of their employment
duties, liability will attach. While this decision targets stipulations in accordance with USERRA, the philosophy
of the legal principles described in the case holding may be applied to similar supervisory decisions.

The Eleventh Circuit Court affirmed the lower court’s finding of summary judgment when an African-
American female police officer, Summers, claimed that she was wrongfully discharged through discrimination.
In Summers v. The City of Dothan, AL (2011), Summers was discharged for violation of department policy
involving two incidents. In the first incident Summers arrested and lodged a detainee for outstanding trespass
warrants for 104 days but failed to complete the necessary paperwork and filing with the magistrate. The
second incident occurred a year later when Summers wrote traffic tickets on a motorist and failed to submit
them pursuant to agency policy. The failure was discovered when the motorist attempted to pay the associated
fines. After her annual review, which followed the second incident, she was terminated. Summers complained
to the chief that she was being discriminated against and was not being treated equally due to her gender and
race, and not due to her conduct. Summers filed an equal employment opportunity claim and the termination
was sustained.

Summers filed a lawsuit for discrimination and wrongful discharge. The court maintained that, in order to

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prevail in a claim of discrimination, Summers would have to show that other employees and incidents were
not punished as harshly as she was, despite violations of the same rules or policies. These incidents would have
to be nearly identical. Summers asserted that other officers in the department had failed to submit proper
paperwork on arrests and confinement of detainees. During discovery Summers proffered several examples in
which officers were not disciplined, but the court found that they were not sufficiently identical to her conduct
and did not provide evidence of disparate treatment equaling discrimination. The court found that Summers
did not establish a prima facie case of retaliation and held that it was not an error for the lower court to award
summary judgment to the city. Further, the court stated that the city had established an applicable policy and
enforced it appropriately.

In Johnson v. City of Shelby, MS (2014) several police officers were fired by the city’s board of aldermen, not
for deficient performance but because they reported criminal activities by one of the aldermen. The officers
brought a civil action under § 1983, claiming that their Fourteenth Amendment due process rights had been
violated, and they sought compensatory relief from the city. The federal district court denied summary
judgment and the Fifth Circuit affirmed, holding that the defendants failed to invoke § 1983 in the original
complaint.

The United States Supreme Court reviewed the case, reversed, and remanded the case to the Fifth Circuit.
The Court held that it is clear that a plaintiff seeking relief under § 1983 does not have to articulate a “perfect
statement” when stating a claim for review, and the substance of the case does not turn on a technicality. The
Court explained that there is no heightened rule which requires a plaintiff seeking damages for violations of
constitutional rights to invoke § 1983 expressively in order to state a claim. The Court concluded that the
officers’ complaint was not deficient as they stated simply, concisely, and directly the events that they alleged
entitled them to damages from the city, and, having informed the city of the factual basis for their complaint,
they were not required to state anything further.

In Heffernan v. City of Patterson, New Jersey, et al. (2016), Heffernan was a detective working for the
Patterson Police Department. The mayor of Patterson was running for re- election against Heffernan’s friend
Spagnola but he was not part of the campaign. Heffernan agreed to pick up campaign yard signs for his
bedridden mother. At the campaign distribution center other officers observed Heffernan holding a Spagnola
sign and speaking to campaign workers. Word spread throughout the department and the next day Heffernan’s
supervisor demoted him back to patrol as punishment for his “overt involvement” in Spagnola’s campaign.
Heffernan filed a § 1983 lawsuit alleging that the police chief and other supervisors had demoted him because,
in their mistaken view, he had engaged in conduct that constituted protected speech. The federal district court
held that Heffernan’s First Amendment right to free speech had not been violated as he never engaged in any
such conduct. The Third Circuit agreed and concluded that Heffernan’s claim was actionable under § 1983 only
if his employer’s action was prompted by Heffernan’s actual, rather than his perceived, exercise of his free-
speech rights.

In a six- to- two decision the United States Supreme Court held that when an employer demotes an
employee out of a desire to prevent the employee from engaging in protected political activity, the employee is
entitled to challenge the unlawful action under the First Amendment. In this case the Court stated that
Heffernan’s supervisors mistakenly thought he had engaged in activities of a kind that they cannot
constitutionally prohibit or punish. The Court ruled that the main question under review is whether the
undisputed reason for the adverse action was in fact protected by the First Amendment. The Court emphasized
that Heffernan’s supervisor’s motives for the demotion created harm and such actions discourage employees
from engaging in protected speech and association. The Court concluded that the actions of Heffernan were
indeed protected by the First Amendment and his employer demoted him out of an improper motive.

Fair Labor Standards Act

Background

During the Great Depression the Fair Labor Standards Act (FLSA) was enacted to ensure that employers
complied with federally mandated minimum wage, equal pay, and overtime standards. Child labor restrictions
are also addressed in the Act (Allred, 1995). The provisions of the Act are stipulated in 29 U.S.C. §§ 201–219

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and it is enforced by the U.S. Department of Labor. Over the years the Act has undergone many amendments
and since 1974 it has applied to both private and public employment.

The FLSA and its requirements have been examined by the United States Supreme Court on two occasions.
In National League of Cities v. Usery (1974) the Court held that the federal government did not have the power
under the Tenth Amendment to interfere with “traditional” functions of state and local governments, including
the power to decide wage rates to be paid to their employees. The Court reversed its prior decision in Garcia v.
San Antonio Metro Transit Authority (1985). It ruled that the FLSA could be entirely applied to state and local
governments and did not violate the Tenth Amendment. The Garcia decision prompted Congress to help the
states by enacting Public Law 99–150 in 1986, which gave the states relief from having to pay overtime and
provided compensatory time off instead of monetary payments.

Work Time/Overtime

The FLSA provides that salaried executive, administrative, and professional employees are exempt from its
minimum- wage and overtime provisions (§ 213). Work time is defined by the Act to mean all hours an
employee is engaged in work, including waiting to be engaged in work or actually at work, authorized or not.
Beyond actual hours worked, provisions of the Act define “work time activities” to include actual job- related
duties, requiring an employee to wear a pager and refrain from consuming alcoholic beverages, maintaining
vehicles when required by the agency, testifying in court, attending mandatory training sessions, and
preparing for an employee grievance. Work time does not include attending training that is not mandated,
maintenance of physical fitness and preparing for work, outside employment, or uninterrupted mealtime
lasting for at least 30 minutes.

The normal work week is established at 40 hours per week during a seven- day period. Work time above this
standard is to be compensated at a rate of time and one- half. Section 207k of the FLSA provides an overtime
provision. Police officers are paid straight time on an hourly basis. Should they exceed 171 hours in a 28- day
period they would qualify for overtime pay for all hours beyond this period. Sleep time may be excluded from
this provision.

In Jeter v. Montgomery County (2007) a black employee brought a civil action against a county, alleging
denial of earned wages, retaliation, and race discrimination. The employee asserted that after she complained
about her lack of overtime pay her home detention verification program was canceled, her workload increased,
and she was informed by her superiors that she was not a team player. The county moved for summary
judgment. The court held that the employee’s claim of being denied overtime was sustained in violation of
FLSA as she worked more than 40 hours per week without additional compensation. The court also held that
her claim alleging an equal protection violation due to race- based discrimination in pay was sustained where
she was treated differently, based on her race, from a similarly situated white employee.

Compensatory Time

The FLSA allows compensatory time to be accrued by public officials. In lieu of overtime pay the FLSA accrual
provisions permit up to 480 hours of compensatory time at a rate of one and one-half hours for each hour of
overtime. As long as the time off does not conflict with work duties, compensatory time must be granted when
an employee requests it. Policy statements should address such a provision. When an employee retires or
resigns, cash must be paid.

The use of compensatory time creates a potential financial liability for an agency (Brooks, 2004). Pursuant to
Title 29 U.S.C. § 207, when employees leave the department they must be paid for accumulated compensatory
time based upon their salary when they leave or their average salary over the previous three years, whichever
is greater. Accordingly, an agency may want to “force” employees to take compensatory time when it is
advantageous to the department. In Christensen v. Harris County (2000) the United States Supreme Court ruled
that the FLSA permits a public employer to order an employee to take compensatory time off whenever the
employer chooses to do so.

This, however, raises another question: can an employee demand to be allowed to take compensatory time
off whenever the employee wants to take the time off? The law on this issue is not as clear. The FLSA (Title 29
U.S.C. § 207) provides that an employee who has earned compensatory time by working overtime must be

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allowed to take such time off within a reasonable time of the request, unless doing so would cause an “undue
disruption” to operations. In Houston Police Officers’ Union v. City of Houston (2003) the Fifth Circuit Court of
Appeals addressed the Houston Police Department’s policy that placed an inflexible cap prohibiting more than
10 percent of the force being scheduled off on a particular day for such things as annual leave and
compensatory leave. Thus an officer who requested to use compensatory time on a day when 10 percent
already had scheduled time off would have that request denied. The court found the policy in compliance with
the FLSA, stating that the statute only requires that an agency permit an employee to take compensatory time
within a “reasonable” period after the request.

Violation Claims

An employee claiming a violation of the FLSA minimum- wage and overtime requirements may file a civil suit
in federal or state court. Moreover, the Department of Labor may file lawsuits on behalf of employees.
Employers found to have violated the act are liable for unpaid minimum wages or unpaid overtime
compensation.

Police officers and other employees of the Greenville, North Carolina, Police Department won a settlement
of $660,000, including $255,000 in attorney’s fees and costs, in a lawsuit regarding overtime issues. The federal
suit, initiated in 1999, alleged that officers were not paid for time spent responding to off- duty pagers and
phone calls, arriving early for their scheduled shift or staying late, cleaning their department- authorized
weapons and assigned vehicles, preparing for court, and reviewing files and completing paperwork. The
settlement did not reflect payment for time employees said they spent “on call” and “on standby,” but it did
release the city from further claims on these issues.

In Stachowski v. Town of Cicero (2005) a police officer’s termination was upheld for falsifying overtime
claims. Stachowski was a 21- year veteran police officer who was accused of making false overtime claims of
nearly $53,000. He was suspended without pay and the town board initiated termination proceedings. The
board denied Stachowski’s request for a hearing, noting that the severity of the charges justified his
termination, and they fired him. He applied for and received retirement benefits and sued the town for denial
of due process and equal protection rights. The lower court dismissed his claims, finding that the board’s
termination was justified and that he could have appealed the decision. His equal protection claim was also
dismissed because he failed to allege that similarly situated officers were treated differently.

Stachowski appealed and the appellate court affirmed the lower court’s decision. His claims were dismissed
as state law provided that a town’s board had the final authority to terminate an employee’s employment. The
court stated that Stachowski did have the right to appeal the board’s decision under state law and, because he
did not, such failure did not give rise to a due process violation. Further, the court stated that his equal
protection claim was meritless because Stachowski was not similarly situated to other officers who retired with
untarnished records.

Beyond providing protections regarding overtime and compensatory pay, the FLSA also includes employee
protections against discrimination and retaliation by an employer when an employee submits a work- related
complaint. In Kasten v. Saint-Gobain Performance Plastic Corp. (2011) the United States Supreme Court
examined whether an oral complaint, rather than a written complaint, made by an employee is protected under
the FLSA. Kasten made a complaint to his supervisors that he was not paid for putting on and taking off the
protective clothing required to perform his job. Kasten alleged that the process of putting on the protective gear
caused him to be late in “clocking in and clocking out” in a timely matter. The process did not provide time
credit for employees, which violated the provisions of the FLSA. Rather than submit a formal written
complaint about the problem he orally notified his supervisors several times, in accordance with the company
employee handbook and policies. He further made several complaints to the director of human resources and
the operations manager. Over a period of time Kasten was dismissed, and claimed that he was fired for making
the complaints. The company denied that Kasten made any complaints and stated that they fired him for poor
performance and chronically clocking in late, which violated company policy.

Kasten filed a lawsuit for retaliation and wrongful discharge and the Seventh Circuit affirmed the lower
court’s decision, ruling that oral complaints made by employees are not protected under the FLSA. The Court
granted certiorari to examine whether “an oral complaint of a violation of the FLSA” is “protected conduct
under the [Act’s] anti- retaliation provision.” With a six- to- two decision (Justice Kagen abstaining) the Court

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reversed the lower court’s decisions. The Court took a broad perspective, holding that Congress, in passing the
FLSA, intended that the anti- retaliation provision covered written and oral complaints and that both are
protected. The language of the provision, “making a complaint,” is not bound to just written complaints but
also included oral complaints made by employees. The Court opined that Congress intended that the FLSA
would protect employees from retaliation and protect an employee from the fear of bringing a complaint to an
employer in order to improve labor conditions. The Court stated that the FLSA encourages employees and the
employer to work together in enforcing work- related standards. The Court ruled that the Secretary of Labor
has consistently held the view that “filed any complaint” covers both oral and written complaints. The Equal
Employment Opportunity Commission has set out a similar view in its compliance manual and in multiple
briefs. These views are reasonable and consistent with the Act.

The Court ruled the method of the complaint is not at issue, rather the FLSA provisions are met when an
employee makes the complaint. Once the complaint is made the employer is placed on notice and reasonable
accommodations must be provided. Administrators are therefore encouraged to keep employee handbooks and
policies current and to adhere to the agency’s grievance procedures. Further, administrators are encouraged to
train all supervisors to all policies and the employee handbook in order to respond to employee complaints
appropriately, which can avert labor- related problems. Agency administrators should maintain a work climate
that encourages employees to work in harmony with supervisors, which serves to resolve prospective work
problems effectively.

In Anderson v. City of Los Angeles (2011) a police officer, Anderson, was charged with several counts of
misconduct in which she violated agency policy by failing to request compensation after working overtime, for
failing to identify other officers whom she instructed to do the same thing, and for making a false statement in
a deposition in which she claimed that other officers and supervisors knew that she had violated department
policy. During a hearing of the policy violations Anderson pleaded guilty to the first count only, and the board
found her guilty on all counts and terminated her employment of 19 years. Anderson filed suit pursuant to the
FLSA and the lower court, reinstating her employment, held that it doubted that the employer ever
communicated to police officers that they may be fired simply for working overtime and not requesting
reimbursement. The department appealed and provided documents supporting that employees indeed had been
informed to submit reimbursement.

The appellate court affirmed the lower court’s decision. The court found that the documents submitted by
the department prohibited employees from working overtime without authorization and not for neglecting to
request compensation after working overtime, which involved the complaint for which Anderson was
terminated. The court ruled that although Anderson admitted to failing to request compensation for working
overtime, the department defendants failed to show a statute, rule, or regulation that made it an act of
misconduct for a police officer to work overtime, whether authorized or unauthorized, and not ask to be
compensated for it.

In Babcock v. Butler County (2015) a correctional officer brought a class action suit against the county,
asserting that the county failed to properly compensate her and other officers for overtime during mealtimes,
in violation of the FLSA. The federal district court dismissed the action and the Third Circuit affirmed. The
court found that the employees received a predominant benefit of 15 minutes of unpaid meal time and were
thus not entitled to receive compensation for it under the FLSA. The court determined that the predominant
benefit test, which asks whether a law enforcement employee is primarily engaged in work- related duties
during meal periods, was the appropriate standard to determine whether officer meal periods are compensable
under the FLSA. The court noted that, during the 15- minute period, officers needed permission to leave the
institution from the warden or deputy warden, were required to remain in uniform, in close proximity to
emergency response equipment, and were on call to respond to emergencies. The officer’s collective bargaining
unit provided officers with the benefit of a partially compensated mealtime and mandatory overtime pay if the
mealtime was interrupted by work.

Employee Drug Testing

United States Supreme Court Decisions

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The prevalence of substance abuse in our society has caused concern about public officials’ fitness for duty.
Screening or testing employees for drug use is an evolving area of the law. Because public employees operate
equipment and machinery, and make decisions about the liberty of citizens, employers must have the public’s
as well as the employee’s interests in mind and be familiar with the legalities of conducting drug searches with
employees.

The Fourth Amendment protects persons from unreasonable searches and seizures. The United States
Supreme Court has held that searches without consent or a valid search warrant are unreasonable except in
certain specific circumstances (O’Connor v. Ortega, 1987). When special need exceeds the normal need in law
enforcement, a search may be reasonable even though performed without probable cause. When a special need
exists, the court must evaluate and balance the need for the search and the person’s Fourth Amendment
protected right against an unreasonable intrusion.

Balancing the need to conduct a search against employee privacy was the essential issue before the Supreme
Court in Skinner v. Railway Labor Executives Association (1989). Following a major train accident a federal
regulation authorizing blood and urine testing of employees who violate safety rules by the Federal Railroad
Administration (FRA) was implemented. The regulation was prompted by evidence that the accident was a
result of widespread drug use by employees working for the railroad. Employees of the union challenged the
searches, claiming that they violated their Fourth Amendment right to be free from unreasonable searches.

In a seven- to- two decision the Court upheld the regulation as constitutional. The Court determined that
drug testing through blood and urine was a search, and the necessity of conducting such searches required
neither probable cause nor individualized suspicion. The Court found that a compelling government interest to
perform such searches outweighed any employee right or privacy interest. The FRA drug testing program
withstood constitutional scrutiny based on special needs of the government.

Using the balancing test between the interests of the government and the privacy rights of the individual,
the Court again upheld a regulation requiring mandatory drug testing of United States Customs Service
employees in National Treasury Employees Union v. Von Raab (1989). The Customs Service implemented a
drug- screening program requiring urinalysis of service employees seeking transfer or promotion to positions
having direct involvement in drug interdiction, requiring the incumbent to carry firearms, or handling
“classified” material. Customs employees challenged the drug testing requirement, claiming it was a violation
of their Fourth Amendment rights. The district court agreed and enjoined the program. The court of appeals
vacated the injunction, holding that the requirement did not violate the Fourth Amendment.

Using the same analysis as in the Skinner decision, the United States Supreme Court upheld the requirement
that workers seeking such positions within the Customs Service must undergo urinalysis. The Court stated
that, in view of the fact that the drug problem in society is pervasive, caused primarily by drug smuggling, the
government has a compelling interest to ensure agents are physically fit to perform their job functions,
particularly agents who carry firearms. The Court ruled that these interests outweigh the privacy interests of
those seeking promotion to such positions, and a warrant is not required. The Court further stated that
government employees do not have the same privacy expectations as private citizens.

From these two cases the Court recognized employment issues and drug testing as “special needs” that
provide for an exception to the warrant requirement under the Fourth Amendment and individualized
suspicion of a particular employee is not required by the Constitution. Moreover, it is not necessary that a
documented drug problem exist within the particular work-place to justify such testing. The Court specified
three governmental interests that could justify mandatory testing in the absence of individualized suspicion.
First, the government has an interest in maintaining the integrity of the workforce. Second, the government
has a legitimate interest in maintaining and enhancing public safety. Finally, the government has an interest in
protecting sensitive information, and in some situations suspicionless testing of individuals whose jobs involve
access to these classified documents. The public safety rationale adopted by the Court in Von Raab and Skinner
outweighs any privacy expectation of the individual governmental employee. Administrators should keep
abreast of changes in the law and develop and maintain testing policies that underscore this principle.

Lower Court Decisions

Testing job applicants for drug use may be required after a conditional offer of employment has been made.
The ADA neither supports nor abolishes such testing, because they are not medical examinations. An applicant

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cannot be required to provide medical information prior to a conditional offer of employment. The California
Supreme Court upheld the screening of police applicants, but struck down such tests as a condition for
promotion with veteran officers in Loder v. City of Glendale (1997). Likewise, in Feliciano v. City of Cleveland
(1993), the Sixth Circuit Court of Appeals upheld a surprise test of police academy cadets and the dismissal of
two who tested positive.

A controversial drug testing issue is that of mandatory and random drug testing of public officials, such as
police and correctional officers. Conducting random searches has generally been upheld when there is
individualized suspicion. Random testing of police officers with notice was upheld in New York in Clark v.
New York City Housing Unit Authority (1990). A federal district court upheld random testing of prison
employees who are issued or given access to firearms in AFGE Council 33 v. Barr (1992). The New Jersey
Supreme Court upheld mandatory urinalysis of officers on an articulated, individualized suspicion of drug use
in Rawlings v. Police Department of Jersey City (1993). Officers who are under custodial arrest are still subject
to testing requirements for administrative purposes.

In Brown v. City of Detroit (1989) police officers challenged the city’s random drug testing program. A
Michigan state court issued a temporary restraining order on the strip- search portion of the program. In court
the plaintiff officers argued that Von Raab was intensely fact- specific to Customs agents and not applicable to
police officers. The court rejected this argument and observed that both positions have the power of arrest and
the right to use deadly force. The city’s drug testing program was upheld by the court, but the city could not
search body cavities for hidden urine absent a reasonable suspicion. Compare, however, Guiney v. Police
Commissioner of Boston (1991). The Massachusetts Supreme Court struck down random testing of Boston
police on state constitutional grounds.

A California appellate court examined a policy on police officers reporting to work with the odor of alcohol
on their breath in Hinrichs v. County of Orange (2004). Hinrichs reported to work and a supervisor smelled
alcohol on her breath and called her to his office. She reported to the office and another supervisor was also in
attendance. Sergeant Schmutz informed Hinrichs that he smelled alcohol on her breath and she responded that
she had had two beers at lunch several hours earlier and that she was taking Nyquil. The sergeant asked her to
take a breath test and Hinrichs agreed,