Police civil liability

SIGNIFICANCE: Police officers may be held financially responsible in civil court for on-duty conduct that harms a civilian. Lawsuits against officers have increased markedly, making it necessary for police departments to consider ways to reduce the threat of potential liability.

Police officers come into contact with the public in a variety of difficult situations, some of which give rise to civil liability cases. Lawsuits against the police sharply increased at the end of the twentieth century and well into the twenty-first century. Considering the tendencies of juries to award large monetary settlements in police civil liability cases, government officials took notice of public concern and began exploring ways to minimize the prevalence of lawsuits against their departments.

In response to the need to develop better methods of protecting the public, many police departments have realized that the threat of civil liability cannot be eradicated but can be reduced. Attempts to do so include implementation of better policies regarding hiring, retention, and supervision of officers. These policies include tougher screening processes for police recruits, better education, and stricter disciplinary measures for misconduct.

Tort Claims

Many lawsuits against police officers involve intentional torts, or private wrongs against a person or property. Wrongful-death lawsuits arise when officers directly cause a person’s death or fail to prevent the death of a person. These suits often involve pursuits, shootings, or handling of prisoners. Police officers are also subject to lawsuits for battery if they use unlawful force to effect an arrest or perform an improper search of a suspect. Officers may also incur liability for false arrest if they detain someone without probable cause or other legal justification.

Police officers are also sometimes sued for negligence. To be found liable for negligence, an officer must have had a duty to act that went unfulfilled or was performed without reasonable care. Claims in this area of law are most often made for failure to operate a vehicle safely or for failure to protect persons who need assistance, such as a motorist on the side of the road or a suspect in the rear of a patrol car. Police supervisors can be held liable for the acts of their subordinates if they fail to supervise adequately or to investigate claims of misconduct.

Federal Claims

A type of lawsuit that may be brought against police officers involves a violation of a person’s civil rights, under Title 42 of the United States Code, Section 1983. Such claims are federal and must involve the deprivation of a right provided by the U.S. Constitution. For a Section 1983 claim to be sustained, officers must have been acting in their official capacity, which is referred to as “acting under color of law.” After George Floyd was killed in 2020 by a Minneapolis, Minnesota, police officer who kneeled on his neck until well after Floyd lost consciousness, his family filed a federal civil rights lawsuit against the city. The suit demanded the police department implement training on use of force. Minneapolis settled the case, agreeing to pay $27 million.

Lawsuits brought against the police for First Amendment violations involve some action by the officers that prevent people from exercising their freedom of speech, religion, or peaceful assembly. This issue most often arises when police break up protests. Fourth Amendment claims arise when officers effect an unreasonable search or seizure that is not based on probable cause. Police officers may also be held liable for depriving suspects of their Fifth Amendment rights, such as failing to recite the Miranda rights prior to custodial interrogation, if a statement made by the suspect is later used at trial.

Many lawsuits are brought against the police for excessive force, under several different legal theories. Lawsuits based on the Fourth Amendment require showing that the force used was unreasonable. Lawsuits based on the Eighth Amendment by convicted offenders require showing that the force used inflicted “cruel and unusual punishment.” Lawsuits based on the Fourteenth Amendment require showing that the force used “shocks the conscience.” Although each amendment requires a different level of proof, claims of excessive force often include combinations of these amendments.

Defenses

Because police officers must continue to protect the public regardless of the threat of civil liability, the criminal justice system has built-in controls to make sure that only cases that appear to have merit will be allowed to proceed. Otherwise, police officers would not be able to do their jobs out of fear of being sued. The defense to the crime that is available to an officer depends upon the type of lawsuit involved.

Police officers facing a lawsuit involving an intentional tort can attempt to show that their acts were unintentional or, alternatively, that no actual harm was suffered. An officer facing a negligence suit can attempt to show that the action taken was not unreasonable or that any damage resulting from the alleged act was brought about by something other than the officer’s conduct.

In federal lawsuits, an officer may seek qualified immunity from the court. Qualified immunity is an affirmative defense that will completely bar a plaintiff from recovery. To establish qualified immunity, an officer must have been performing a discretionary act, one that requires judgment. The court will then determine whether there was a clearly established constitutional right involved. If the law was not clearly established, or if it was clearly established, but the officer’s conduct was objectively reasonable, qualified immunity applies, and the lawsuit will be dismissed. The Legal Defense Fund and other civil rights organizations have worked to reform or eliminate qualified immunity. They argue that the US Supreme Court has expanded the scope of qualified immunity, which extends to other government officials and employees including those in schools. Such nearly blanket immunity, they say, encourages misconduct.

Bibliography

Gaines, Larry, and Victor Kappeler. Policing in America. 4th ed. Cincinnati: Anderson, 2002.

Johnson, Thaddeus L., and Natasha N. Johnson. "Federal Police Reform Talks Have Failed--but Local Efforts Stand a Better Chance of Success." Governing, 28 Sept. 2021, www.governing.com/now/federal-police-reform-talks-have-failed-but-local-efforts-stand-a-better-chance-of-success. Accessed 9 July 2024.

Kappeler, Victor. Critical Issues in Police Civil Liability. 3d ed. Prospect Heights: Waveland, 2001.

Karnowski, Steve, and Amy Forliti. "Floyd Family Agrees to $27M Settlement Amidst Ex-cop's Trial." Associated Press, 12 Mar. 2021, apnews.com/article/minneapolis-pay-27-million-settle-floyd-family-lawsuit-52a395f7716f52cf8d1fbeb411c831c7. Accessed 9 July 2024.

Peak, Kenneth. Policing in America: Methods, Issues, Challenges. Upper Saddle River: Prentice-Hall, 1997.

"Qualified Immunity FAQ." NAACP Legal Defense Fund, www.naacpldf.org/qualified-immunity/. Accessed 9 July 2024.

Ross, Darrell. Civil Liability in Criminal Justice. 3d ed. Cincinnati: Anderson, 2003.

Worrall, John. “Administrative Determinants of Civil Liability Lawsuits Against Municipal Police Departments: An Exploratory Analysis.” Crime and Delinquency 44, no. 2 (1998): 295–313.