Three Techniques to Limit Civil Liability Exposure
Law enforcement officers ensure the safety of our communities while acting as a force for justice. The duties of a police officer, however, present a myriad of circumstances that may lead to civil liability.
From responding to dangerous situations, conducting searches and seizures during arrest, engaging in pursuits of suspects, operating agency vehicles, and utilizing force when necessary for self-protection or for the protection of the public, law enforcement personnel are faced with rapidly evolving situations that require immediate decision making.
Thus, law enforcement, by its nature, is embedded with risk that could lead to civil liability for law enforcement personnel and their agencies.
To reduce exposure to civil liability, law enforcement agencies should engage in systematic risk management. Risk management through policy development, implementation of policies and customs based upon the specific needs of an individual agency and adequate training in policies and customs based upon accepted law enforcement standards are vital for law enforcement because these practices can help agencies limit their exposure in the event of legal action.
Policies are the general principles that guide a unit of government in the management of its affairs. At a minimum, policies define decision making boundaries and reflect the agency’s core values and priorities. Adopted policies should be specifically tailored to meet the unique needs of the specific individual law enforcement department.
Upon adopting policies and customs, agencies should regularly review those policies to ensure compliance with newly enacted laws, state and federal court decisions and accepted professional standards. Regular policy reviews serve not only to protect law enforcement personnel, but also represent accountability to the community through the implementation of best practices and quality controls.
18 U.S.C. § 1983 creates a civil cause of action against any person who, acting “under color of state law,” deprives another person of rights, privileges, or immunities secured by the United States Constitution or federal laws. The United States Supreme Court in Monroe v. Pape, 365 U.S. 167 (1961) held that an individual police officer’s official misconduct may be actionable for purposes of a § 1983 claim if the action was taken “under color of state law.”
Sixteen years later, the Supreme Court held in Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), that municipalities and law enforcement agencies may be sued under § 1983 because those entities are “persons” within the meaning of the statute. To prove that a law enforcement agency’s actions deprived a plaintiff of a constitutional right, Monell requires a plaintiff to demonstrate that the deprivation of constitutional rights occurred due to actions taken pursuant to a department’s “official policy” or “custom.”
The Supreme Court, in Monell, defined “policy or custom” as a “statement, ordinance, regulation or decision officially adopted and promulgated by the body’s officers or a governmental custom that has not received formal approval through the body’s official decision-making channels.” For § 1983 liability to attach under Monell, a plaintiff must prove a direct causal link between a municipality’s policy or custom and the alleged constitutional violation. In Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), the Supreme Court determined that municipal liability may be imposed for a single decision if the decision to adopt a particular course of action was directed by those who establish governmental policy.
Upon the enactment of policies or customs, law enforcement agencies must provide adequate training for the recurring tasks that officers will encounter throughout the course of employment. The training in how to conduct those recurring tasks must be consistent with generally accepted practices in law enforcement.
The seminal case with respect to a law enforcement agency’s failure to train its officers is City of Canton v. Harris, 489 U.S. 378 (1989). In this case, Geraldine Harris was arrested by police officers employed by the City of Canton. During the booking process, Harris fell to the floor numerous times. When asked by the officers if she required medical assistance, Harris responded incoherently. Based upon Harris’ incoherent responses, the officers did not provide medical attention to her.
Upon release, Harris’ relatives took her to a hospital where Harris was treated for various emotional ailments. Harris filed a lawsuit alleging her constitutional due process rights were violated by the City of Canton because official police department policy placed sole discretion to determine whether a detainee needed medical attention to shift commanders and the shift commanders were provided no training to assist them in making these medical evaluations.
Ultimately, the United States Supreme Court held in Harris that a municipality may be held liable under § 1983 for violations of inadequate training of its employees, but only when the failure to train amounts to “deliberate indifference” to the constitutional rights of the people with whom the employees will interact. Thus, City of Canton v. Harris stands for the proposition that a municipality is liable only when the failure to train is a deliberate choice on the part of the city.
Later Supreme Court decisions have limited the impact of “deliberate indifference” with respect to failure to train. For example, in Connick v. Thompson, 563 U.S. 51 (2011), John Thompson sued Orleans Parish District Attorney Harry Connick and several assistant prosecutors in their official and individual capacities under § 1983. In his lawsuit, Thompson claimed that he served fourteen years on Louisiana’s death row for a crime he did not commit because prosecutors failed to turn over exculpatory blood evidence in a related case.
The United States Supreme Court reversed a $14 million judgment for Thompson after holding that a prosecutor’s office could not be found liable for the admittedly illegal conduct of one employee when there has only been one violation of policy caused by deficient training.
Proper supervision is another risk management technique that law enforcement agencies can employ to limit their civil liability. The Sixth Circuit has addressed the issue of supervisor liability under § 1983 with respect to failure to train. In Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), the court held that a supervisor is not liable for failing to train unless the supervisor “either encouraged the specific incident of misconduct or in some way directly participated in it.” A plaintiff must demonstrate that the supervisor implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.
Three risk management techniques designed to limit exposure to civil lawsuits are proper policy development, adequate training programs designed to address recurring tasks that may result in harm to another, and ensuring proper supervision of employees. Policies govern the mission, define core values and provide direction for the agency and its employees. Training ensures that officers understand policies and procedures, establish competency with those policies, procedures and accepted professional standards. Training programs must be developed in areas where there is a patently obvious need for training, such as use of force, traffic stops and searches and seizures.
Finally, appropriate supervision is a necessary risk management technique that provides the oversight and accountability needed to ensure that officers are adhering to agency policies, practicing accepted law enforcement standards and receive the training necessary to fulfill the mission to protect and serve the community.