By John V. Berry, Esq., www.berrylegal.com
I drafted an earlier version of this article in 2014. A lot has happened since then. I am updating the article in light of recent events and the increased issues involving personal liability for civil actions filed against police officers. Police officers, given increasing scrutiny in light of recent media events across the country, have been subject to countless lawsuits and public scrutiny. With such scrutiny comes an increased number of civil lawsuits filed in relation to on-duty and off-duty actions related to a police officer’s employment. It is important that police officers be ever vigilant and take steps to become aware of their potential for personal liability for actions taken in the line of duty which could result in a personal lawsuit against them.
Personal Liability for Police Officers
Personal liability for a law enforcement officer is just the legal theory that a police officer can be held civilly responsible for their actions related to their law enforcement position. Civil lawsuits can be brought against officers under any number of various legal theories, such as intentional personal injuries (torts) and pursuant to 42 U.S.C. § 1983. Lawsuits under Section 1983 are the most common against law enforcement officers and can be brought against an officer when he or she violates statutory or constitutional rights under law. This is commonly referred to as a Bivens action, named after the case of Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Since 2014, there have been far more cases involving civil actions against police officers given social media and the Internet.
The most common examples of civil claims against police officers include:
1. Those alleging false arrest (sample case)
2. Those alleging excessive force (sample case);
3. Those alleging malicious prosecution (sample case); and
4. Those alleging that a law enforcement officer failed to intervene in the unlawful actions of a fellow law enforcement officer (sample case).
Usually, when a police department or federal law enforcement agency is sued for a law enforcement officer’s actions, the individual police officer is sued personally as well as a matter of course. Usually, the principal target of damages by plaintiffs' lawyers are a municipality or police department, due to their ability to pay larger judgments or settlements, but an officer typically is targeted as well and a personal judgment is sought. This can cause significant stress for a police officer as the civil process unfolds. I have represented many police officers who are afraid of being required to forfeit their house or pension to satisfy a potential judgment. Just the thought of such consequences can dramatically affect a law enforcement officer's perspective. Thankfully, the courts still provide a significant amount of deference to police officer actions.
Deference by the Court System
The relatively good news for police officers is that the majority of lawsuits filed against police officers are dismissed based on the defense of law enforcement officer immunity. Most law enforcement officers do not have unlimited means to pay attorney fees or significantly high judgments out of their own funds and are rightfully concerned about these kinds of cases. I have seen so many officers stress needlessly about this issue. What the news does not report, however, is that most courts tend to provide a high level of discretion to law enforcement officers as to how they perform their duties. It is often the case that a law enforcement officer will be immune to suit because of this high level of deference. It is the unusual case where a law enforcement officer’s case is not given deference (those typically are the cases that are profiled in the news).
The current caselaw regarding police immunity is best discussed in the 2017 case of Rand v. Lavoie, Case No. 14-cv-570-PB, in New Hampshire. The standard for police immunity in police cases is as follows. In order to overcome an immunity defense for a police officer, the alleged victim must show that they “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). The U.S. Court of Appeals for the First Circuit has explained that there are two aspects to this inquiry: “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.” Stamps v. Town of Framingham, 813 F.3d 27, 34 (1st Cir. 2016) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 32 (1st Cir. 2011)).
A Fourth Amendment excessive force claim requires proof that “the defendant officer employed force that was unreasonable under the circumstances.” McGrath, 757 F.3d at 25 (quoting Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir. 2012)). In general, an officer may not use deadly force defensively or to prevent escape unless a “reasonable officer [in the same circumstances] would believe that [an individual] posed a ‘threat of serious physical harm either to the officer or others.’” See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 12 (1985)). The courts have held that in assessing the reasonableness of an officer’s conduct, courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). A court must take into account the “totality of circumstances,” Garner, 471 at 9, and “slosh [their] way through the factbound morass of ‘reasonableness,’” Scott v. Harris, 550 U.S. 372, 383 (2007). The Fourth Amendment’s reasonableness test is objective: it focuses on how a “reasonable officer on the scene” would act, rather than an officer’s actual state of mind. As a result, courts must avoid analyzing an officer’s conduct “with the 20/20 vision of hindsight” and should be mindful that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97.
Courts, in general, have gone out of their way to provide defense to police officers in most cases given the significant personal and safety issues they face in the scope of their employment.
The Government Typically Represents the Police Officer
The standard for action against a police officer is high, as mentioned above. Additionally, it is also important for the police officer to know. news for law enforcement officers regarding personal liability is that the government usually steps in to defend the officer after a civil lawsuit is filed. Federal agencies, states and localities typically have laws or regulations that require them to step in and represent an officer sued for official misconduct. The plaintiff will typically expect this. These laws vary by state. It can be the case that the state or locality may represent both the state and the officer in defending against a civil action. It is often in the interests of the government to do so to avoid complicating the legal defense for a case of alleged misconduct. Furthermore, when the government decides to settle a case, they often require the plaintiff to agree to a full release against the officer as well as the government. In the vast majority of cases, police officers have little to worry about in terms of paying a judgment.
Insurance in the Context of a Civil Claim
A private insurance policy should always be considered by a law enforcement officer. Law enforcement officers should maintain an insurance policy to cover them for legal defense for civil lawsuits related to duty-related actions and to perhaps pay judgments or settlements. These policies vary. It is important for law enforcement officers to explore this option given the litigious nature of law enforcement today. There are various policies that exist and a law enforcement officer would do well to explore these options. We have represented police officers in the past under the FOP Legal Defense Plan. Our law firm recommends that all law enforcement officers maintain civl liability insurance for the rare case in which the state or municipality declines to represent an officer.
For police officers, it is very important to understand personal liability issues as a law enforcement officer and for an officer to take steps to protect themselves. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here Berry & Berry Facebook Page.