Legal Issues for Police Supervision - PowerPoint Presentation

Slide1

Legal Issues for

Police SupervisionSlide2
Slide3

“…Police must obey the law while enforcing the law” because “in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”

Spano

v. New York, 360 U.S.315 (1959)

INTEGRITY & COURAGESlide4

ROADMAP

LIABILITY ISSUES

SOVEREIGN IMMUNITY

SEARCH & SEIZURE ISSUES

USE OF FORCE ISSUESSlide5

SPECIFIC INSTANCES WHICH COULD RESULT IN CIVIL LIABILITY

N

egligent hiring, training, retention

F

alse arrest

I

mproper search and seizure

I

njury to innocent bystandersFailure to prevent a criminal act from occurringFailure to protect confined inmatesTraffic chases/pursuitsExcessive use of forceBias-based actionsSlide6

Top 10 crimes for officers

Larceny 12.12%

Sex Offenses Other Than Rape 9.48%

Battery 9.15%

Driving Under The Influence 5.08%

Excessive Use of Force 5.05%Slide7

Top 10 crimes for officers

Excessive Use of Force 5.05%

Fraud/Forgery 5.03%

Drugs Other Than Cannabis/Cocaine 4.64%

Weapon Offenses 4.02%

Cocaine-Possession or Sell 3.08%

False Statements/Reports

19.92%Slide8

Other than false reports, fit into four groups

Greed (26.99%)

Anger (19.69%)Lust (12.74%)

Peer Pressure (12.70%)Slide9

Average age for decertification?

32 Years Old

7.2 Years of Service5-10 Years of Service, not rookies, most likely to act unethicallySlide10

McKenna v.

Honsowetz

, 2010Officers responded to McKenna’s home in response to a call to 911 that stated he was having a medical seizure. During their encounter with McKenna the officers repeatedly tried to get him to put on his pants, and tried to force him to rise, in the face of his request that they stop.

6thSlide11

McKenna v.

Honsowetz

, 2010While having a seizure, officers rolled him over, pinned him on his stomach with their knees, and handcuffed his arms behind his back and shackled his ankles.

After he was taken to the hospital, officers searched a dresser drawer and his medicine cabinet looking for prescriptions or illegal drugs.

6thSlide12

McKenna v.

Honsowetz

, 2010Officer

Honsowetz

admitted that even in responding to medical emergencies, he is always aware that criminal activity may be involved and he is “always looking to investigate it.”

He believed he might be dealing with an intoxicated person, a person on drugs, or a diabetic reaction.

6thSlide13

McKenna v.

Honsowetz

, 2010In the process, they knocked down everything on top of the dresser and threw out his children's baby-teeth collection. One of the officers also ran a check on McKenna's license plate.

Did their actions violate McKenna’s right to be free from unreasonable searches and seizures?Slide14

Vicarious

LiabilitySlide15
Slide16

VICARIOUS LIABILITY

A form of strict, secondary liability that arises under the common law doctrine of agency –

respondent superior

– responsibility of the superior for the acts of their subordinate

In a broader sense, the responsibility of any third party that had the

"right,

ability,

or duty to control" the activities of a violatorWikipediaSlide17
Slide18

Supervisor

participated in the activity with the officer(s);

Directed the activity of the officer(s);

Ratified

the behavior of the officer(s);

Failed

to act against the activity

FACTORS THAT CAN CREATE VICARIOUS LIABILITYSlide19
Slide20

Civilly in state court;

Criminally in state court;

Civilly in federal court for federal civil rights violations (42 U.S.C. §1983);

Criminally in federal court for federal criminal civil rights violations (42 U.S.C. §241, 242);

Departmental discipline / IA investigations;

Family / personal issues

CONSEQUENCESSlide21

Negligent Failure to Train

Lawsuits against supervisors, agencies, and individuals for failure to train emanate from two sources…

21Slide22

Negligent Failure to Train

an individual whose rights have been violated by an officer who has not been properly trained,

22Slide23

Does Ohio allow the OPEN CARRY of firearms?Slide24

Negligent Failure to Train

and by a subordinate who suffers injury in the course of duty because he has not be

trained adequately.

24Slide25

Negligent Failure to Train

With

proper documentation

, however, the supervisor should be able to establish good faith if he repeatedly calls to the attention of those who hold the purse-strings the need for training.

(

Canton v. Harris

).Slide26

Negligent Failure to Train

Even if financial resources are available, unstructured training alone

may not be sufficient

. The nature, scope and quality of the training program

MUST

be properly documented and its relevance to the job performance identified.

(

Canton v. Harris

).Slide27

Negligent Failure to Train

There is a need to document training sessions with detailed outlines to substantiate course content.

Attendance sheets are

necessary

for defense purposes in lawsuits brought by one’s own subordinates. Slide28
Slide29

Negligent Assignment

Negligent assignment means assigning an employee to a job without ascertaining whether or not he is adequately prepared for it, or keeping an employee on a job after he is known to be unfit. Slide30
Slide31

Negligent Assignment

The rule is that a supervisor has an affirmative duty not to assign or leave a subordinate in a position for which he is

UNFIT

.Slide32

Negligent Failure to Supervise

Failure to supervise means negligent abdication of the responsibility to properly oversee employee activity.Slide33
Slide34

Negligent Failure to Supervise

The usual test is: Did the supervisor know of a pattern of behavior and failed to act on it?

The current law on liability for negligent failure to supervise is best summarized as follows: Slide35

Negligent Failure to Supervise

To be liable for a pattern of constitutional violations, the supervisor must have known of the pattern and failed to correct or end it.Slide36

Negligent Failure to Supervise

Courts have held that a supervisor must be “causally linked” to the pattern showing that he had knowledge of it and that his failure to act amounted to approval and hence

tacit

encouragement that the pattern continue.

Tacit

: Understood or implied without being stated: "your silence may be taken to mean tacit agreement".Slide37
Slide38

Negligent Failure to Direct

Failure to direct means not sufficiently telling the employee of the specific requirements and proper limits of the job to be performed.

Open Carry

Round 2Slide39

Negligent Failure to Direct

The manual must be accurate, legally updated and form the basis for agency operations in theory and practice.Slide40

Negligent Entrustment

Negligent entrustment refers to the failure of a supervisor to properly supervise or control an employee’s custody, use, or supervision of equipment or facilities entrusted to him on the job.

Examples are improper use of vehicles and firearms which result in death or serious injury.Slide41
Slide42

Negligent Entrustment

Plaintiff must prove that the officer was incompetent, inexperienced or reckless, and that the supervisor knew or had reason to know of the officer’s incompetence.

Defense in these cases is that proper supervision was exercised, but that the act occurred anyway, despite adequate precautions.Slide43

Negligent Retention

Negligent retention means the failure to take action against an employee in the form of suspension, transfer or termination, when such employee has demonstrated unsuitability for the job to a

DANGEROUS DEGREE

. Slide44
Slide45

Negligent Retention

The test is: Was the employee unfit to be retained and did the supervisor know, or should he have known of the unfitness?Slide46

Negligent Retention

The rule is that a supervisor has an affirmative duty to take all necessary and proper steps to discipline and/or terminate a subordinate who is obviously unfit for service.

This can be determined from either acts or lesser misconduct indicating a pattern of unfitness.Slide47
Slide48

Negligent Retention

The defense against negligent retention is for the supervisor to prove that proper action was taken against the employee and that the supervisor did all he could to prevent the damage or injury. Slide49

Negligent Retention

This suggests that a supervisor must know what is going on in his department and must be careful to investigate complaints and document those investigations.Slide50
Slide51

SOVEREIGN IMMUNITY

A type of immunity that in common law jurisdictions traces its origins from early English law

(hence the saying,

the king can do no wrong

)

Generally speaking, it is the doctrine that the

government

cannot

commit a legal wrong and is immune from civil suit or criminal prosecutionSOURCE: WikipediaSlide52

ORC 2744.03(A)(6)

… the employee is

immune

from liability unless one of the following applies: 

(a) … acts or omissions were manifestly

outside

the

scope

of the employee's employment or official responsibilities;  (b) … acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;  (c) Civil liability is expressly imposed upon the employee by a section of the Revised CodeSlide53

QUALIFIED IMMUNITY

The true test is whether the unlawfulness of the act is apparent to a reasonable officer.

If, in fact, the law in existence at the time of the act was not clearly established, an officer is not expected to anticipate subsequent legal developments.Slide54

METHODS FOR AVOIDING OR MINIMIZING CIVIL LIABILITY

PROFESSIONALISM

COMMON SENSE

KNOWLEDGE OF AND ADHERENCE TO THE LAW

QUALITY RECRUITMENT

QUALITY BASIC TRAINING AND CONTINUED TRAINING

PERFORMANCE EVALUATIONS

OPERATIONAL POLICIES AND PROCEDURES

LIABILITY INSURANCESlide55
Slide56
Slide57
Slide58

Did the officer owe a duty to the person injured?

U.S. v. Lanham, 2010Slide59

U.S. v. Lanham, 2010

6

th CircuitLanham and Freeman worked as jailers in Grant County, KY. Along with their supervisor they decided to “scare” an individual, who had been arrested for a traffic violation, by placing him in a general population jail cell.

Lanham and his supervisor mocked the victim about his slight appearance, and he was present Slide60

U.S. v. Lanham

,

2010 6th Circuit

when his supervisor said that the victim would make a "good girlfriend" for the other inmates.

When the supervisor stated that they needed to teach the victim a lesson, Lanham quickly volunteered that he knew a prisoner in Cell 101.Slide61

Lanham talked to Inmate Wright, within earshot of other inmates, and explained that the guards would be bringing a new prisoner down and that they wanted the prisoners to "fuck with" him.

The inmates cheered at this news when Lanham was present, and he knew of that particular cell-block’s reputation for violence.

U.S. v. Lanham, 2010

6

th

CircuitSlide62

Lanham stated that the victim should have been in a

detox

cell, not in the general population, and he admitted that he had asked Inmate Wright to teach the victim a lesson. Deputy Freeman also failed to protect or assist the victim after learning of the plan.

Should the deputies be personally liable for any harm???

U.S. v. Lanham, 2010

6

th

CircuitSlide63

The victim was beaten and sexually assaulted by other inmates. Are the deputies liable???

The court held that there was sufficient evidence to support the defendant’s convictions for committing civil rights abuses in violation of

18 U.S.C. §§ 241 and 242. Arrested & liable!!!

U.S. v. Lanham, 2010

6

th

CircuitSlide64

USE OF FORCE

doesn’t need to be difficult!Slide65

USE OF FORCE ISSUES

?

WHAT CONSTITUTES A “USE OF FORCE”?Slide66

Force includes the Threat of ForceSlide67

A use of force case will be judged under the

REASONABLENESS

requirement of the 4th amendmentSlide68

USE OF FORCE ISSUES

Abolished the “Fleeing Felon Rule” as applied to the Fourth Amendment regarding the

use of lethal force

Occurred October 3, 1974

Tennessee v. Garner (1985)

471 U.S. 1

Argued October 30, 1984

Decided March 27, 1985Slide69
Slide70

USE OF FORCE ISSUES

Decided that the correct constitutional standard to apply in the use of lethal (deadly) force to affect the lawful seizure of any person is the

“objectively reasonable”

test

Tennessee v. Garner (1985)Slide71

USE OF FORCE ISSUES

The use of deadly force is objectively reasonable when:

A law enforcement officer has reason to believe the response is

objectively reasonable

to protect themselves or others from the

imminent threat

of death or serious physical harm

Tennessee v. Garner (1985)Slide72

USE OF FORCE ISSUES

The use of deadly force is objectively reasonable when

:

A law enforcement officer is attempting to prevent the escape of a suspect

AND

the

suspect

poses a threat

of serious physical harm to othersTennessee v. Garner (1985)Slide73
Slide74

Graham v. Connor

(1989)

ROBSlide75

USE OF FORCE ISSUES

Established the

“

OBJECTIVELY REASONABLE

”

test

to law enforcement actions and use of force

Occurred November 10, 1984

Graham v. Connor (1989) 490 U.S. 386Slide76

“Reasonableness”

Must

be judged from the perspective of the

REASONABLE

OFFICER

Facing a tense,

RAPIDLY-EVOLVING

situation

WITHOUT REGARD to their underlying intent or motivationGraham v. Connor (1989)Slide77
Slide78
Slide79

USE OF FORCE ISSUES

Scott v. Harris (2007)

Decided April 30, 2007

Occurred March 18, 2001Slide80
Slide81

USE OF FORCE ISSUES

Scott v. Harris (2007)

Could

the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit?

What difference was this case from Garner when an officer shot a fleeing burglar in the back of his head?Slide82

A police officer's attempt to terminate a

dangerous

high-speed car chase that threatens

the lives of innocent bystanders

DOES NOT violate

the

4

th

Amendment, Even when it places the fleeing motorist at risk of serious injury or death.Scott v. Harris (2007) Slide83

Probable CauseSlide84

PROBABLE CAUSE

0

100

50

Absolute Certainty

Probable Cause

(

Articulable

) Reasonable Suspicion

Possibility / Hunch

Proof Beyond a Reasonable DoubtSlide85

PROBABLE CAUSE

Test for Probable Cause

The focus in determining probable cause is not on the

certainty

that a crime was committed, but on the

likelihood

of it.

Don’t have to be RIGHT; but, you do have to be REASONABLESlide86
Slide87

TERRY STOPS

Looking at the right of police officers to stop a suspect under circumstances in which there was insufficient grounds for an actual arrest

Requires

REASONABLE ARTICULABLE SUSPICION

This does

NOT

authorize police to detain anyone on mere SUSPICION or a HUNCH!Slide88
Slide89

100%

Beyond Reasonable Doubt

Clear and Convincing

Preponderance

50%

Probable Cause

Reasonable Suspicion ~

articulable

facts

Hunches or Whims ~ can’t articulate

0%

Investigation

Trial

_____

LEVELS OF CRIMINAL EVIDENCESlide90

POLICE AUTHORITY TO DETAIN

Terry v. Ohio, 1968

Upheld police

authority

to stop (detain or

seize) a person where the officer observes

UNUSUAL

conduct…which leads a reasonable officer to conclude that criminal activity may be afoot (happening)

.Slide91

OFFICERS ARE REQUIRED TO ARTICULATE A REASONABLE BELIEF THAT THE SUSPECT IS ARMED

AND…

THE SUSPECT POSES A THREAT TO THEM

2 requirements before a “Terry” pat down or frisk

:Slide92

Reasonable Suspicion + Armed & Dangerous =

Officers must articulate a

REASONABLE

belief that a suspect is armed and poses a threat…

before the officer is permitted to conduct a

limited

“Pat Down” of the suspect’s outer clothing.

Terry Stop Terry Frisk

FRISKSlide93
Slide94
Slide95

Frisking Containers

An officer who finds a closed container with a suspect, who is being lawfully stopped and frisked,

MAY OPEN the container to see if it contains a weapon if:

in light of the officer’s experience and training the item could contain a weapon

and the container is

NOT

lockedSlide96

POLICE AUTHORITY TO DETAIN

Terry v. Ohio, 1968

Search or

“Frisk”

is going to be

limited

to searching for

hard

objects… That could to hurt the officer like guns, pocket knives, mace, clubs…

Not

limited…

  Slide97
Slide98

POLICE AUTHORITY TO DETAIN

Terry v. Ohio, 1968

While an officer may want to conduct a frisk for “

officer safety

” purposes,

THE LAW REQUIRES MORE

than

that.

The officer has to have facts to support armed & dangerous.Slide99
Slide100

POLICE AUTHORITY TO DETAIN

Terry v. Ohio, 1968

Look, Feel, Crush and Twist –

FLETC

You can manipulate

HARD

objects as much as necessary to ensure they are not weapons!

You may NOT manipulate soft objects that could not be a weapon.Slide101
Slide102
Slide103

POLICE AUTHORITY TO DETAIN

Terry v. Ohio, 1968

Offenses like drug distribution or burglary just go with weapons.

Courts have held that people who sell drugs most often carry weapons to protect their money and product.

Burglars need burglary tools - things to break windows, screw drivers, and crow bars to pry doors open.

In Terry the detective had reasonable suspicion to believe an armed robbery was afoot. Slide104

Appearance may = FriskSlide105

Mobile Conveyance Exception

2 requirements to search

Must be probable

cause

to believe that

evidence

of a crime or contraband is

located in the vehicle to be searched. The vehicle be “readily mobile.” Slide106

Carroll v. United States

(1925)

If an officer stops a car based on probable cause and conducts a search in order to preserve evidence due to the automobile‘s mobility, the search may be conducted

without

a warrant.Slide107

Chambers v.

Maroney

(1970)

A warrantless search of a vehicle is valid despite the fact that a warrant could have been procured without endangering the preservation of evidence.Slide108

United States v. Ross

(1982)

If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of

every

part of the vehicle and its

contents

that

may

conceal the object of the search.Slide109

Maryland v. Dyson

(1999)

Officers are

not

required to obtain a search warrant for a mobile conveyance

even

if

they have time to secure one.Slide110
Slide111

OHIO v. MOORE

(2000)

, The smell of marijuana,

ALONE

, by a person

qualified to recognize the odor, is sufficient to establish

PROBABLE

CAUSE to conduct a search. There need be NO additional factors to corroborate the suspicion of the presence of marijuana.Slide112
Slide113

U.S. v. Foster,

No.02-3859 (7/20/2004)

“Accordingly, when the officers detected the smell of marijuana coming from Foster’s vehicle, this provided them probable cause to search the vehicle without a search warrant.

This

therefore turned a

lawful

Terry stop into a lawful search.”Slide114

Arizona v. Gant

(April 21, 2009)

Police may search a vehicle incident to the arrest

(SIA) of an occupant ONLY in two circumstances:

when the arrestee is

unsecured

and

within

reaching distance of the passenger compartment at the time of the search (the safety rationale); or DUSSlide115

Arizona v. Gant

(April 21, 2009)

Police may search a vehicle incident to the arrest (SIA) of an occupant ONLY in two circumstances:

when it is

reasonable

to believe

evidence

relevant

to the crime might be found in the vehicle (the evidentiary rationale).What evidence relevant to the crime of DUS would reasonably be found in the car?Slide116
Slide117

U.S. v. Lopez,

6

th Circuit (June 01, 2009)

Defendant was not within reaching distance of his vehicle’s passenger compartment at the time of the search, he was handcuffed in the back seat of the patrol car by then.

No reason to think the vehicle contained evidence of the offense of arrest, since that offense was reckless driving. Slide118

U.S. v. Lopez,

6

th Circuit (June 01, 2009)

“The 73 grams of crack cocaine, a set of digital scales, and a

Glock

.40 caliber handgun loaded with ten rounds of ammunition which formed the basis of his conviction for possession with the intent to distribute and for carrying a firearm in relation to a drug trafficking crime are

inadmissible

. Defendant’s conviction is

vacated.” Slide119

U.S. v. Johnson

12/16/2010

Observed (by U.C.) in hand-to-hand transaction exchanging cash for off-white substance then left as a passenger in car. Radioed in…

Different

officer conducted stop, Johnson then ran. He was

tazed

.

Did he have reasonable suspicion to stop Johnson?

Is this an arrest?Slide120

U.S. v. Johnson

12/16/2010

Johnson fell to the ground, the officer saw a gun in his waistband. Arrested for weapons charge and

secured

into patrol car.

Officer searched passenger area of car where Johnson was. Found cocaine in pocket of a

hoody

. Johnson was also charged with possession of cocaine. Slide121

U.S. v. Johnson

12/16/2010

Big shock! Johnson appealed. Was the search legal? Why?

What could the officer search for?

What exception(s) to the warrant requirement can be used to search the car after his arrest?Slide122

U.S. v. Johnson

12/16/2010

THE FINDING“It was reasonable to believe evidence

relevant

to the

crime of arrest

might be found in the vehicle”.

What evidence could be connected to his arrest?Slide123

U.S. v. Johnson 12/16/2010

Since the officer arrested Johnson for unlawful possession of a firearm, he could have reasonably believed that ammunition or additional firearms were in the car or in containers in the car, especially in the passenger area where Johnson had been sitting.

Why didn’t the court list drugs as part of the SIA? Slide124

LIABILITY FOR HIGH SPEED PURSUIT

EMERGENCY CALL

1. Destination known2. Route of travel known3. Speed depends on police choice

COMPARISON

VEHICULAR PURSUIT

1. Destination unknown

2. Route of travel unknown

3. Speed depends on pursued vehicleSlide125
Slide126

FACTORS TO CONSIDER IN PURSUIT DRIVING

TYPE OF

VIOLATION

AVAILABILITY OF ALTERNATE MEANS OF APPREHENSION

WEATHER, ROAD CONDITIONS, VISIBILITY

CONDITION OF THE OFFICER’S

VEHICLESlide127

FACTORS TO CONSIDER IN PURSUIT DRIVING

DANGER

TO OTHER

DRIVERS, PEOPLE & PROPERTY

AVAILABILITY OF ASSISTANCE

PROBABILITY OF SUCCESSFUL APPREHENSION

AREA IN WHICH PURSUIT TAKES PLACESlide128
Slide129

Smith v.

Freland

, 6th Circuit 1992Stop sign violation led to wild pursuit with speeds of 90mph

Several times the driver tried to strike the police vehicle

Officer then fell in behind violator

Notified dispatch of the assault

Chased into neighboring Sharonville into a

culdesac

Slide130

Smith v.

Freland

, 6th Circuit 1992The cars came nose to nose

Officer exited to make the arrest

Smith backed up his car, then sped forward and crashed into Officer

Schulcz's

car. He backed up again and zoomed around the police car, smashing into the fence and gate as he did so.Slide131

Smith v.

Freland

, 6th Circuit 1992As he passed by the officer (not at him) would lethal force be justified?

As Smith drove past, Officer fired one shot at him. The bullet entered the passenger side of the car, pierced the passenger seat, then struck Mr. Smith in his right side, killing him. Slide132

Smith v.

Freland

, 6th Circuit 1992

Mr. Smith had proven he would do almost anything to avoid capture; Officer

Schulcz

could certainly assume he would not stop at threatening others.

The fact the Officer violated Springdale's policies regarding police use of force

DOES NOT

require a different result. City policies DO NOT determine constitutional law.Slide133

Smith v.

Freland

, 6th Circuit 1992“We must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene.

What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”Slide134

?

LIABILITY FOR HIGH SPEED PURSUIT

Use of ROADBLOCKS to terminate pursuits

WHEN?Slide135

LIABILITY FOR HIGH SPEED PURSUIT

Addressed when the use of roadblocks to terminate a pursuit could constitute a civil rights violation

for

excessive force

Brower v. County of Inyo (1989)

489 U.S.

593

Slide136

LIABILITY FOR HIGH SPEED PURSUIT

A seizure alone is not enough for 1983 liability. It must also be

unreasonable!

Brower v. County of Inyo (1989)Slide137

LIABILITY FOR HIGH SPEED PURSUIT

In this case, the roadblock was not just a significant show of authority to induce a voluntary stop

It was designed to

produce

a stop by

physical

impact if the

driver

did not voluntarily complyBrower v. County of Inyo (1989)Slide138

USE OF FORCE ISSUES

Addressed whether an officer must use each consecutive level of control prior to deployment of lethal force

Addressed whether a political subdivision has the constitutional duty to provide various levels of control equipment to

officers

Plakas

v.

Drinski

(1994)

19 F.3d 1143 (7th Cir.)Slide139

Plakas

v.

Drinski

(1994)Slide140

USE OF FORCE ISSUES

We

do

not

believe the 4th Amendment

requires

the use of the least or even a less deadly alternative so long as the use of deadly force is

reasonable

under Garner v. Tennessee and Graham v. ConnorPlakas v. Drinski (1994)Slide141

USE OF FORCE ISSUES

The

ONLY

test

is whether what the police officers actually did was

REASONABLE

.

Plakas

v. Drinski (1994)Slide142

FEASANCE

Introduce the

Feasance sistersSlide143

FEASANCE

Introduce the

Feasance sisters

MAL

feasance

MIS

feasance

NON

feasanceSlide144

FEASANCE

Introduce the

Feasance sisters

MAL

feasance

Misconduct or wrongdoing, especially by a public official.Slide145

FEASANCE

Introduce the

Feasance sisters

MIS

feasance

Improper and unlawful execution of an act that in itself is lawful and proper.

The doing of something lawful in an unlawful way so that the rights of others are infringed.Slide146

FEASANCE

Introduce the

Feasance sisters

NON

feasance

Failure to perform an act that is either an official duty or a legal requirement.Slide147
Slide148
Slide149

“REASONABLENESS”, IN USE OF LESS THAN LETHAL FORCE, IS DETERMINED BY LOOKING AT FOUR FACTORS:

From the perspective of a reasonable officer;

Not with 20/20 hindsight;

Based on an objective standard;

On whether the officer acted properly under the established laws at the time the incident aroseSlide150

JUSTIFYING A TACTIC

USE OF TRAINED TECHNIQUE

Taught during basic training or later in advanced training, as an acceptable police tactic

DYNAMIC ATTEMPT at a TRAINED TECHNIQUE

Attempting a trained technique and the suspect’s actions direct the technique away from the original target (asp hit to head)

EMERGENCY CIRCUMSTANCE

Not a trained technique, but justified under the circumstances,

ie

. Groin rips, Eye gouges. Immediate personal safety issue that is life-threatening. “Do or die situation!”Slide151

A FAILURE TO TRAIN CASE MAY BE A BASIS FOR LIABILITY IF:

1. The training is in fact inadequate;

2. The city is deliberately indifferent to the rights of the person with whom the officers have contact;3. The lack of training was the proximate cause of the plaintiff’s injuriesSlide152

Scott v. Clay County,

Tenn

(2000)Deputies chase car after reckless driving through intersection up to 100mph at timesDriver loses control and crashesDeputy approaches on foot and car backs toward him hitting cruiserNearly strikes another officer and heads back onto roadway

Okay to use force? Type?Slide153

Scott v. Clay County,

Tenn

(2000)Deputy testified he felt the driver posed a grave immediate menace to the lives and limbs of his approaching colleagues as well as innocent highway travelers.

Fired 5 times at driver and 4 times at tires causing car to stop.

Was the force legal?

Passenger was hit twice!Slide154

Scott v. Clay County,

Tenn

(2000)One bullet lodged inside her skull and a second gunshot imbedded within her right shoulder

Patricia has sought $10 million in compensatory, and $5 million in punitive damages

Should the deputies receive qualified immunity? Was their force reasonable?Slide155

Scott v. Clay County,

Tenn

(2000)

Pierce's faulted actions were objectively reasonable. He permissibly discharged his duty to restore and maintain lawful order through the most effective instrumentality readily available, namely gunfire. Pierce justifiably fired at the fleeing vehicle in order to seize its occupant(s); his actions therefore could not violate the rights of any unknown passenger who may have been injured by his actions. Thus, Pierce is entitled to qualified immunitySlide156

OHIO v. HOWARD

,

(2008) Ohio-2706 In Ohio v.

Farris

, the Ohio Supreme Court fleshed out the “plain-smell” doctrine by holding that the odor of burned marijuana in the passenger compartment of a vehicle

does

not

, standing alone, establish probable cause for a warrantless search of the trunk of the vehicleSlide157

OHIO v. HOWARD

,

(2008) Ohio-2706 Here, the officers, who were trained

and

experienced

in detecting the odor of

unburned

marijuana, both testified that they had smelled a strong odor of unburned marijuana emanating from the car, not just a light odor.

But, more specifically, each officer specifically testified that the odor of the unburned marijuana was coming from the trunk of the car.Slide158

TORT

A PRIVATE OR CIVIL WRONG OR INJURY

A DUTY OWED ACCORDING TO A STANDARD OF CARE, WITH FAILURE TO MEET STANDARD THEREBY CAUSING A LOSS, DAMAGE OR INJURY TO ANOTHERSlide159

TORT LAW

THERE ARE THREE CATEGORIES OF TORT LAW:

NEGLIGENTINTENTIONALCONSTITUTIONALSlide160

TORT LAW

NEGLIGENT

Failure to conduct affairs or perform certain acts in such a manner that others are subjected to

unreasonable

risk of harm

It is a

lack of due care

in using police equipment or performing police duties (i.e. Improper high speed pursuits, use of force, use of roadblocks, firearms, etc.)Slide161

TORT LAW

NEGLIGENT

A plaintiff must prove these elements:

Existence of a duty

Breach of that duty

Proximate

(foreseeable)

cause leading to

Loss or damageSlide162

TORT LAW

INTENTIONAL

Voluntarily

performing an act which, to a substantial certainty, will injure another

Includes such actions as assault, false arrest, malicious prosecution, defamation, invasion of privacy, intentional infliction of emotional distress

Must show

actual

harmSlide163

TORT LAW

CONSTITUTIONAL

A

failure

to recognize and

uphold

the rights, privileges, and immunities provided by the U.S. Constitution, thereby

depriving

an individual of his/her rights, privileges, and/or immunitiesExamples: 42 U.S.C. 1981 - racial discrimination 42 U.S.C. 1983 - while acting under color of law, deprive a person of a constitutionally protected rightSlide164

TORT LAW

CONSTITUTIONAL

A plaintiff

must

prove these elements:

Public officer or official

Acting under color of law leading to

Violation of a constitutional right

Proximate cause of harm/damageSlide165

Houston Police 2009Slide166

TORT REMEDY

THERE ARE TWO CATEGORIES OF TORT REMEDY:

COMPENSATORY

PUNITIVESlide167

TORT REMEDY

THERE ARE TWO CATEGORIES OF TORT REMEDY:

COMPENSATORY

GENERAL

pain and suffering

SPECIFIC

out-of-pocket expensesATTORNEY FEES available for cases involving the violation of civil rights (42 U.S.C. 1988)Slide168

TORT REMEDY

THERE ARE TWO CATEGORIES OF TORT REMEDY:

PUNITIVE

(or Exemplary)

Punishment; Paid from the defendant’s own pocket, not from insurance. Available for intentional torts.Slide169

ELEMENTS OF A PERSONAL INJURY TORT

1. Did the officer owe a duty to the person injured?

Failure to arrest

Public duty vs. Special duty

Slide170

ELEMENTS OF A PERSONAL INJURY TORT

2. Did the officer violate the standard of care?

The actions are those of a reasonable and prudent police officer

The

act must not be willful or wanton or done with a reckless disregard for the safety of othersSlide171

ELEMENTS OF A PERSONAL INJURY TORT

Did

the officer’s violation of the standard of care cause the plaintiff’s injury?

Proximate

, causal relationship between the officer’s actions and the injury sustained. It is a causal relation between two or more events.

Slide172

ELEMENTS OF A PERSONAL INJURY TORT

Did the officer owe a duty to the person injured?

Sawicki

v. Village of Ottawa Hills (1988)Slide173

Terrace View Apartments

Replaced by

ORC 2744Slide174

LIABILITY FROM VEHICLE OPERATION

Did the call arise from such a dangerous situation that it would excuse the officer from being liable for his negligent action or conduct that resulted in the injury or loss?Slide175

LIABILITY FROM VEHICLE OPERATION

June 13, 2009