Liability Risks of the Law Enforcement Supervisor A Trial ... · Liability Risks of the Law Enforcement Supervisor A Trial Lawyer ˇs Perspective Presented by: Charles E. Hervas and

Liability Risks of the Law Enforcement Supervisor – A Trial Lawyer’s Perspective

Presented by:

Charles E. Hervas and Michael D. BersaniHervas, Condon & Bersani, P.C.

333 Pierce Road, Suite 195Itasca, Illinois 60143

(630) [email protected]; [email protected]

www.hcbattorneys.com

POLICE ARE A FREQUENTLY SUED GROUP – WHY?n Civil Rights Act of 1871

n Codified at 42 U.S.C. § 1983n “Every person who, under color of any [law] . . . subjects, or

causes to be subjected, any . . . person . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .”

n Post Civil War Reconstruction statute passed to implement 13th, 14th and 15th Amendments.

POLICE ARE A FREQUENTLY SUED GROUP – WHY?n Monroe v. Pape, 365 U.S. 167 (1961)

n The conduct of the local police constitute State action “under color of law” even when not authorized by statute or law

n However, a city is not a person under § 1983.

n Monell v. Dep’t Soc.Services, 436 U.S. 658 (1978)n A city is a person under § 1983.n Municipal liability pursuant to custom, practice or

policy.

POLICE ARE A FREQUENTLY SUED GROUP – WHY?

Municipality = deep pocket =indemnification

POLICE ARE A FREQUENTLY SUED GROUP – WHY?n 42 U.S.C. § 1988

n Civil Rights Attorney’s Fees Award Actn Private Attorney General Theory

n Riverside v. Rivera, 477 U.S.561 (1986)n Plaintiff awarded attorney’s fees if successful - the

plaintiff’s lawyer will get “paid.”

n Prevailing Plaintiffs, not prevailing Defendants, recoup fees

n Cost of litigation = settlement

POLICE ARE A FREQUENTLY SUED GROUP – WHY?n Societal Attitudes and Perceptions

n The Rodney King saga and jury perceptions

n Continuing public mistrust of law enforcements in the 1990’s

n September 11, 2001 – did the pendulum swing back?

n Illinois Areas of Concernn Wrongful convictions – death row emptiedn Torture suitsn High profile police misconduct

LITIGATION - AREAS OF CONCERN

Use of Force - Classic Jury Trials

n Defined under a standard of reasonableness (Fourth Amendment)

n Fact Intensive - Questions of law versus questions of fact


False Arrest/Wrongful Convictions

n Qualified Immunity - did the conduct violate the clearly established constitutional rights of the Plaintiff?

n Wrongful Convictions - due process claims under Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001).

n Police investigators are most likely targets of suit.


Understanding the Relationship Between Fourth Amendment (ProbableCause) and Fourteenth Amendment (Equal Protection of Laws)

n Expansion of police officer tools through the Fourth Amendment under U.S. Supreme Court case law:

n Minor traffic violation sufficient pretext for drug suspicion stop - Whren v. U.S., 517 U.S. 806 (1996)

n Police may make custodial arrest for minor offenses. Atwater v. City of Lago Vista, 532 U.S. 318 (2001)

n Passenger may be ordered out of vehicle - Maryland v. Wilson, 519 U.S. 408 (1997)

LITIGATION – AREAS OF CONCERN

n Unprovoked flight from high crime area – police may stop fleeing individual. - Illinois v. Wardlow, 528 U.S. 119 (2000)

n Police may use dog sniff pursuant to traffic stop. People v. Caballes, 543 U.S. 405 (2005).

n Violation of knock and announce rule does not necessarily require suppression of evidence. Hudson v. Michigan, 547 U.S. 586 (2006).

n Car chase terminated by forcing suspect off road does not violate 4th Amendment. Scott v. Harris, 127 S.Ct. 1769 (2007).

n Police may search vehicle incident to arrest if arrestee is within reaching distance of passenger compartment at time of search or it is reasonable to believe that the vehicle contains evidence of crime. Arizona v. Gant, 556 U.S. 332 (2009).

n Imminent threat of violence justifies warrantless entry into home. Ryburn v. Huff, 132 S.Ct. 907 (2012)


n But, discriminatory use of sanctioned Fourth Amendment tools may violate Fourteenth Amendment violations (equal protection)

n Police may not selectively enforce traffic laws based on race. Whren v. United States, 517 U.S. 806 (1996)

n Remember that probable cause (4th Amendment) and equal protection (14th Amendment) are different!


n Bias Based Policing - Understanding Racial Profiling

n Definition - “Profiling” is the interdiction, detention, arrest or other non-consensual treatment of an individual because of a characteristic or status (CALEA) 61.1.8

n Evidence Used in Profiling/Discrimination Casesa. Direct Evidence- clear intent, obviousb. Indirect Evidence - inference or patterns with no

apparent or obvious intentc. Combination of direct and indirect


n Employment Liability

n Discrimination - Sex, Age, Race, Disability, Religion, etc.

a. State level administrative process

b. Federal level administrative process


n Retaliation- The First Amendment in the Workplace

n Comanda v. Country Club Hills

n Niebur v. Town of Cicero


Discipline Within the Ranksn Perform Fair and Impartial Investigations

a. Use outside resources, if necessary(1) State Police(2) States Attorney(3) Attorney General

b. Follow Statutory Guidelines

n Employee lying may be fatal n Valio v. Board of Fire and Police Commrs., 311 Ill App 321, 724 NE 2d

1024 (2nd Dist. 2000)

THE PUBLIC OFFICIAL PUNITIVE DAMAGES CRISISn Scope of punitive damages problem

n Damages available in civil rights cases

n Compensatory damages – make plaintiff whole

n Punitive damages – punish and deter future misconduct

THE PUBLIC OFFICIAL PUNITIVE DAMAGES CRISISn Punitive damages sought in most every civil

rights case- usually within jury’s discretionn Intentional misconduct is not necessary for

punitive damages award. Smith v. Wade, 461 U.S. 30 (1983)

n Large punitive damages awards occurring with greater frequency

n Illinois municipalities cannot pay punitive damages on behalf of officer.n 745 ILCS 10/2-302

THE PUBLIC OFFICIAL PUNITIVE DAMAGES CRISISn Problem of Punitive Damages Unique to

Public Officialsn Private Sector – employment discrimination

cases – Title VII of the Civil Rights Act of 1964 -42 U.S.C. § 2000en Individuals cannot be sued under Title VII.n Only applies to entities over 15 employees.n Combined statutory caps on compensatory and

punitive damages.

THE PUBLIC OFFICIAL PUNITIVE DAMAGES CRISISn Public Sector – Section 1983 cases

n Municipalities cannot be sued for punitive damages. City of Newport v. Fact Concerts, 453 U.S. 247 (1981)

n Only individuals can be sued for punitive damages in public sector lawsuits.

n No caps on punitive damages.

THE PUBLIC OFFICIAL PUNITIVE DAMAGES CRISISn How to protect yourself – Action Plann Consult an estate planning lawyer before being

suedn Residence (in Illinois) can be held in tenancy by the

entiretyn Consider transfer of property to spouse or other family

member (certain downsides – not for everyone)

ER Survey is Fatally Flawedn Impossible for doctors to know the context of injuries from an

examination.

n Nature and extent of injuries do not correlate to the justification for the degree of force used.

n Reports on physicians’ subjective judgments as opposed to objective evidence.

n Reflects perception rather than what really happened.

n Renders study meaningless.

n Survey maligns law enforcement unjustly and unscientifically.

Source: Force Science News, Transmission #115 (Jan. 30, 2009)

Section 1983 Excessive Force Claims

n Excessive force claims are analyzed under the Fourth Amendment’s prohibition against unreasonable seizures.

n Judged objectively from the perspective of a reasonable officer on the scene, not 20/20 vision hindsight.

n Courts allow for the fact that officers are often forced to make split-second judgments about the amount of force that is necessary in circumstances that are tense, uncertain and rapidly evolving.

Graham v. Connor, 490 U.S. 386, 396 (1989).


n Objective Reasonableness Standard: Whether the force used was reasonably necessary under the circumstances to make the arrest.n Factors:

n Severity of the offense;n The immediate threat posed to the safety of officers or others;n Whether the suspect is actively resisting arrest or attempting to

evade arrest by flight.Graham v. Connor, 490 U.S. 386, 396 (1989)

n Use of Deadly Force: When a reasonable officer, under the circumstances, would believe that the suspect’s actions placed him or others in the immediate vicinity in imminent danger of death or serious bodily harm.Tennessee v. Garner, 471 U.S. 1 (1985).


n Individual Liability: personal involvement or responsibilityn Supervisory Liabilityn Subordinate’s misconduct must occur at supervisor’s

direction or with the supervisor’s knowledge and consent.

n Supervisor must know of subordinate’s misconduct and facilitate it, approve it, condone it, or turn a blind eye.

n Some causal connection between action complained of and the supervisor being sued.

n Failure to Intervene: notice and realistic opportunity to prevent another officer from inflicting harm


n Recent Case Lawn Use of pepper spray. Brooks v. City of Aurora, 653 F.3d 478 (7th Cir. 2011)

n Use of pepper spray and batons. Padula v. Leimbach, 656 F.3d 595 (7th Cir. 2011)

n Use of Taser.Clarett v. Roberts, 657 F.3d 664 (7th Cir. 2011)

n Take down and knee to back.Kim v. Ritter, 2012 WL 4373342 (7th Cir. 2012)

But, seen Use of Baton Launcher. Phillips v. Commun. Ins. Corp., 678 F.3d 513 (7th Cir. 2012)

Tasers and the Media

n Association v. Causationn Problem with media attention:

n Links temporal association with causationn Implies that injury/death means unreasonable or

excessive force was used.n Judicial system does not work this way.

n Plaintiff has to prove, through evidence, that constitutional use of force standard has been breached, and that injuries were proximately caused by that breach.

Tasers: “Less Than Lethal” Forcen Developed by a NASA scientist in the 1970’s.

n Alternative to lethal weapons to reduce injuries and deaths.

n Uses electrical current to disrupt voluntary control of muscles (neuromuscular incapacitation or “NMI”).

n Fires two dart-like electrodes propelled by compressed nitrogen cartridges and connected to gun by conductive wire.

n 50,000 volts.

n 5 second shock cycle capable of repeated shocks.

n Can be used as a stun gun device.

Source: Taser International, Inc., www.taser.com

Tasers: Pros and Cons

n According to Taser International, its product has reduced injuries by nearly 80% and saved 9,000 lives and residual cost savings in civil liability cases

Source: Taser International, Inc., www.taser.com

n Amnesty International has called for a moratorium on Taser use citing more than 334 deaths of persons since 2001

Source: http://www.amnestyusa.org/print.php

U.S. Dept. of Justice Studyof Arrest Related DeathsU.S. Department of Justice reported 4,813 arrest-

related deaths (all causes) between January 2003 and December 2009

n 61% caused by law enforcement (homicide)n 11% caused by drug/alcohol intoxicationn 11% caused by suiciden 6% accidental injuryn 5% illness/natural causesn 6% other/unknownSource: U.S. Dept. of Justice, Bureau of Justice Statistics Report of Arrest- Related

Deaths in the United States 2003-2009

U.S. Dept. of Justice Report (cont’d)

n 36 arrest-related deaths involved conducted energy devices (CED)

n 17 reported as the weapon that caused the death

n Over 60% of the 36 deaths involved violent offenses and assaults on police officers

n All 36 deaths involved intoxication, threats, resisting arrest, attempted flight, fighting, or other weapons, alone or in combination

Source: U.S. Dept. of Justice, Bureau of Justice Statistics 2007 Report of Arrest-Related Deaths in the United States 2003-2005

2011 Study of DeathsFollowing Taser Usagen Risk of death in a CED-related use of force incident is less than 0.25%; it is reasonable

to conclude that CEDs do not cause or contribute to death in the large majority of cases.

n No conclusive medical evidence that indicates a high risk of serious injury or death to humans from direct or indirect cardiovascular effects of short-term CED exposure in healthy normal, non-stressed, non-intoxicated persons.

n Warned against use on small children, elderly, pregnant women and those with diseased hearts.

n Cautioned that associated risks with continuous or repeated discharges of greater than 15 seconds are unknown.

n Law enforcement need not refrain from deploying devices to place uncooperative or combative subjects into custody subject to national guidelines and appropriate use of force policies.

Source: U.S. Dept. Justice, National Institute of Justice Special Report Study of Deaths Following Electro Muscular Disruption (May 2011)

Tasers and the Fourth Amendment

n The same reasonableness standard applies regardless of the weapon used.

Roberts v. Manigold, 240 Fed. Appx. 675 (6th Cir. 2007).

n Use of a Taser is not per se excessive.

n However, it can be excessive if the use is unreasonable under the circumstances.

n These cases are very fact-specific.


Courts are more likely to uphold Taser use when:

1) There are limited alternatives, e.g., no other non-lethal weapons, officer is alone without backup, arrestee is too far away to control without weapons or with horter-range weapons.

Plakas v. Drinski, 19 F. 3d 1143, 1150 n. 6 (7th Cir. 1994); Buckley v. Haddock, 292 Fed. Appx. 791 (11th Cir. 2008); Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).


2) Officers give a warning or threat, such as “Stop or I’ll use my taser!”Parker v. Gerrish, 547 F. 3d 1 (1st Cir. 2008); Autin v. City of Baytown, 174 Fed. Appx. 183 (5th Cir. 2005); Cyrus v. Town of Mukwonago, 2009 WL 1110413 (E. D. Wisc. 2009).

3) The offense is severe and violent. Beaver v. City of Federal Way, 2008 WL 5065620 (9th Cir. 2008).

However, even when person is suspected of committing minor, nonviolent crimes, use of taser reasonable when person poses a realistic threat to officer’s safety. Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004);


4) Arrestee has minor or no injuries. Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004); Beaver v. City of Federal Way, 2008 WL 505620 (9th Cir. 2008).

5) Arrestee is actively resisting or evading arrest. Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993); Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004); Cyrus v. Town of Mukwonago, 2009 WL 1110413 (E. D. Wisc. 2009).


Courts are more likely to find excessive force when:1) Suspect’s conduct did not amount to a severe or

violent crime, absent realistic threat to officer safety. Brown v. City of Golden Valley, 2009 WL 2168871 (8th Cir. 2009)

2) Taser is used after arrestee is subdued. Orem v. Rephann, 523 F. 3d 442 (4th Cir. April 28, 2008); Roberts v. Manigold, 240 Fed. Appx. 675 (6th Cir. 2007).

3) No verbal warning or threat. Parker v. Gerrish, 547 F. 3d 1 (1st Cir. 2008); Autin v. City of Baytown, 174 Fed. Appx. 183 (5th Cir. 2005).


4) Arrestee is only passively resisting, or poses minimal safety threat.Phillips v. Jack, 2008 WL 4331427 (E.D. Wis. 2008); Brown v. City of Golden Valley, 2009 WL 2168871 (8th Cir. 2009)

5) Tasers are used for punishment.

Courts concerned about the possibility of torture because Tasers leave minimal to no marks.Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008); Hickey v. Reeder, 12 F.3d 754 (8th Cir. 1993)


Failure to Provide Tasersn 7th Circuit held that the county could not be held liable for

failing to provide its deputies with more non-lethal choices, such as OC spray and Tasers.

n “[I]t is clear that the Constitution does not enact a police administrator’s equipment list.”

Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. 1994).


Oops! I drew the wrong gun!n 4th and 9th federal circuits have found for officers in cases

where officer meant to draw his Taser and mistakenly drew his firearm.

n Both courts noted that mistakes made by officers during the course of their duties have been held to be reasonable for Fourth Amendment purposes, citing cases involving mistaken searches of the wrong premises or mistaken arrests of the wrong person. Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008); Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007).


n Use of Force Continuum n Place at the same justification level as Oleoresin

Capsicum (OC).IACP, Electro-Muscular Disruption Technology, A Nine-Step Strategy for Effective Deployment; IACP National Law Enforcement Policy Center, Electronic Control Weapons, Concepts and Issues Paper (rev. Aug. 2005).http://theiacp.org/PublicationsGuides/Research

n CED authorized when Level 4 (Active Physical Resistance) or higher resistance is encounteredRecommended General Order for Use of Conducted Energy Devices, www.sheriffs.org

Tasers and the Fourth Amendmentn Taser Model Policy

n Only officers who have satisfactorily completed approved training shall carry devices

n Device shall be carried opposite service handgunn Device is analogous to OC spray on use of force continuumn Do not use on handcuffed persons absent overtly assaultive

behavior that cannot be reasonably dealt with less intrusive meansn Do not use on anyone unless person demonstrates overt intention

to use violence against officer or another person or fleeing suspectn Avoid use where person’s fall may result in deathn Avoid use around flammable or explosive materialn Do not use on pregnant women, elderly persons, young children,

visibly frail persons absent exigent circumstancesn Minimize activations

Source: IACP Model Policy (2005)

Tasers and the Fourth AmendmentReport Writingn Notify supervisor of deployment of Taser

n Record use of Taser in case report and, if applicable, use of force report

n Articulate rationale for use of Taser, including specific factors, i.e., severity of offense, immediate threat to safety, active resistance or fleeing arrest

n Articulate other circumstances, i.e., injuries to arrestee and officer, alcohol or drug use, etc.


n Other Considerationsn Annual refresher trainingn Document body location where device appliedn If applicable, document ineffective deploymentn Explicitly prohibit non-authorized uses:

n Solely to inflict pain or discomfortn Unauthorized demonstrationsn Horseplayn Interrogations

10 TIPS ON HOW TO PROTECT AGAINST EXCESSIVE FORCE LAWSUIT

1. Take your training seriously.

n Training not only makes you more effective but reduces injuries and liability risks.

n Keep your training file updated.

n City of Canton v. Harris, 489 U.S. 378 (1989) – city and police chief may be liable for deliberate indifference to known training deficiencies.


2. Report Writing

n “If it’s not in the report, it didn’t happen.”n An incomplete or inaccurate report will be used to impeach

your testimony and can cause you to lose a civil rights trial.n Don’t give your opponent ammunition for cross

examination.n Timely, legible and accurate.n Articulate the facts that support the action you tookn Supervisory approval.


3. Medical Treatment for Arrestee’s Injuries

n Pay attention to injuries and always offer medical treatment.

n Document refusal of treatment.n Don’t turn a “no case” into a claim for failure to case for

failure to summon medical care.n A failure to pay attention to injuries may fuel a punitive

damage claim.


4. Document Arrestee’s Injuries

n Document injuries accuratelyn Even if the arrestee does not appear to need medical

treatment, did not receive treatment, or refused treatment.n Why?n An arrestee in a civil rights suit will exaggerate injuries.n Jury will to know how someone was injured.


5. Document Alcohol and Drug Use

n Include facts in report where alcohol and/or drugs used or suspected of being used

n Even if the offense is not alcohol or drug relatedn Unlike a criminal case, the arrestee’s alcohol or drug use

is admissible in a civil rights case:n Part of totality of circumstancesn Shows erratic behaviorn Affects credibility


6. Document Officer’s Injuries

n Even if injuries are minor and officer did not obtain medical attention

n The fact that an officer was injured will impact a jury’s verdict regarding the amount of force that was necessary to make an arrest

n Potential counterclaim


7. Booking Photos

n A civil rights plaintiff will often exaggerate injuries and how the injuries were obtained.

n The booking photo does not lie.


8. Preserve video and audio

n Ask that squad video, station surveillance/security camera video, and communications audio be saved and preserved

n At the very least, it helps to fill in the gaps in the story


9. Criminal trial testimony.

n Don’t miss court!n Let ASA know if a civil rights case has been filed or

threatened.n Prepare for the criminal trial testimony.n Officer’s testimony in the underlying criminal trial can

and will be used against the officer in the civil rights case.n Follow your cases!


10. Citizen’s complaints and internal disciplinary investigations.

n An investigation of a citizen’s complaint is discoverable in a civil rights case.

n Don’t go it alone – seek advice/representation from attorney or union.

n Prepare your to/from carefully.n Prepare for your interview/interrogation - don’t be causal.n Always be truthful!

Documents

Liability Risks of the Law Enforcement Supervisor A Trial ... · Liability Risks of the Law Enforcement Supervisor A Trial Lawyer ˇs Perspective Presented by: Charles E. Hervas and