General Liability Issues for Police Agencies - Presentation

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General Liability Issues for Police Agencies ILEA Police Chief Executive Training Course Tim J. Cain, J.D., M.B.A., LL.M. ILEA Staff Attorney

Tim J. Cain -B.A. 1980 Indiana University – Bloomington -J.D. 1984 Valparaiso U. School of Law -M.B.A. 1991 Indiana Wesleyan University -LL.M. 2001 John Marshall Law School -LaGrange County Prosecutor 1991-2002 -Reserve Deputy Noble County Sheriff’s Department 2007-2016 -Over 100 jury trials in State and Federal Courts

Course Objectives At the conclusion of this course of instruction the student will be able to: 1. Recite the standard for liability of a governmental agency under 42 U.S.C. §1983 ; 2. Recite the standard for liability of a governmental agency under the 14 th Amendment substantive due process clause ;

Course Objectives At the conclusion of this course of instruction the student will be able to: 3. State the definition of respondeat superior ; 4. State the definition of false arrest/false imprisonment ; 5. State the standard for use of force;

Course Objectives At the conclusion of this course of instruction the student will be able to: 6. Recite the standard for negligent hiring ; 7. Recite the standard for negligent training ; 8. Recite the standard for negligent retention/supervision;

Course Objectives At the conclusion of this course of instruction the student will be able to: 9. State the definition of qualified immunity ; and 10. Recite the provisions of the ITCA that apply to law enforcement.

Federal Law Bases 42 USC §1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, in equity, or other proper proceeding for redress…”

Federal Law Bases Monell v. Dept. of Social Services , 436 U.S. 658 (1978) : - A governmental agency is a “person” for purposes of §1983. - A plaintiff need only allege that she/he incurred an injury caused by a policy, custom, or procedure to impose liability on a governmental agency for an employee’s actions.

Federal Law Bases Owen v. City of Independence, Missouri , 445 U.S. 622 (1980) : - Governmental entities have no common law qualified immunity based on good faith. Thus, governmental entities may be held liable under §1983.

Federal Law Bases City of Oklahoma v. Tuttle , 471 U.S. 808 (1985) : - An inadequate policy or a failure to train cannot be based upon a single episode of LEO misconduct.

Federal Law Bases City of Oklahoma v. Tuttle , 471 U.S. 808 (1985) : - When the policy itself violates the Constitution, as in Monell , then there is no need to show any episodes of misconduct for a plaintiff to recover. However, when the Constitutional violation is the result of application of a policy, then a plaintiff must prove multiple episodes of misconduct.

Federal Law Bases City of Oklahoma v. Tuttle , 471 U.S. 808 (1985) : - Liability for inadequate policies or failures to train or supervise is based on multiple incidents of LEO misconduct that show a “deliberate indifference” to the known or obvious consequences to the rights of citizens on the part of the police agency’s management.

Federal Law Bases City of Oklahoma v. Tuttle , 471 U.S. 808 (1985) : - There is no strict liability for governmental agencies for the actions of its officers.

Federal Law Bases Board of Commissioners of Bryan County v. Brown , 520 U.S. 397 (1997) : - The plaintiff must show that the governmental agency, through “deliberate action”, was the “moving force” behind the injury suffered by the plaintiff.

Federal Law Bases Board of Commissioners of Bryan County v. Brown , 520 U.S. 397 (1997) : - There must be a link between the negligent hiring/retention and the likelihood that this LEO would commit this particular deprivation of Constitutional rights.

Federal Law Bases Substantive Due Process : 14 th Amendment states “…nor shall any State deprive any person of life, liberty, or property without due process of law…”

Federal Law Bases Substantive Due Process : The question to be decided is whether the nature and/or scope of the “liberty” asserted by the plaintiff is protected by the Constitution and, if so, has it been infringed by a governmental agency.

Federal Law Bases Rochin v. California , 342 U.S. 165 (1952); U.S. v. Salerno , 481 U.S. 739 (1987): Substantive due process claims against governmental agencies may result in liability when the government actor abuses his/her power in a manner that “shocks the conscience.”

Federal Law Bases County of Sacramento v. Lewis , 523 U.S. 833 (1998): In emergency circumstances, when the need for action is urgent and there is insufficient time for reasoned deliberation, plaintiffs must show that LEOs acted with an intent to harm in order to prevail on substantive due process grounds.

Indiana Law Bases Respondeat Superior : Under respondeat superior , an employer is subject to liability for the tortious acts of an employee committed within the scope of employment.

Indiana Law Bases Hurlow v. Managing Partners, Inc. , 755 N.E.2d 1158 ( Ind.App . 2001): Respondeat superior liability turns on whether an employee’s act furthered the employer’s business interest to an appreciable extent or whether an employee’s authorized acts and unauthorized acts are so closely associated that the employee can be said to have acted within the scope of employment.

Indiana Law Bases Miller v. City of Anderson , 777 N.E.2d 1100 ( Ind.App . 2002): It is the absence of probable cause that makes the arrest unlawful. Probable cause is facts and circumstances known to the arresting officer which would warrant a person of reasonable caution and prudence to believe the accused had committed or was committing a criminal offense.

Indiana Law Bases Excessive Force: Indiana Code §35-41-3-3 states: “A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:

Indiana Law Bases Excessive Force: (1) has probable cause to believe that deadly force is necessary: (A) to prevent the commission of a forcible felony; or (B) to effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and

Indiana Law Bases Excessive Force: (2) has given a warning, if feasible, to the person against whom the deadly force is to be used.”

Indiana Law Bases Graham v. Connor , 490 U.S. 386 (1989): were the officer’s actions objectively reasonable in light of the facts and circumstances then known to her/him, without regard to his/her underlying intent or motivations?

Indiana Law Bases Graham v. Connor , 490 U.S. 386 (1989): “Reasonableness” must take into account the fact 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.”

Indiana Law Bases Crawford v. City of Muncie , 655 N.E. 614 ( Ind.App . 1995): Force employed by a LEO that exceeds this ‘objectively reasonable’ standard is considered excessive force. Excessive force amounts to the common law tort of assault and battery.

Indiana Law Bases Board of Commissioners of Bryan County v. Brown , 520 U.S. 397 (1997): The tort of “[n] egligent hiring requires a plaintiff to show that a governmental entity’s decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision…”

Indiana Law Bases Board of Commissioners of Bryan County v. Brown , 520 U.S. 397 (1997): In other words, was THIS officer highly likely to inflict the PARTICULAR injury suffered by the plaintiff?

Indiana Law Bases Negligent Training: The focus in cases of failure to train is on the adequacy of the training program to prepare LEOs to respond properly to the usual and recurring situations with which they must deal.

Indiana Law Bases City of Canton, Ohio v. Harris , 489 U.S. 378 (1989): a governmental entity may be liable for inadequate training programs if it amounts to “deliberate indifference” to the rights of people with whom LEOs come into contact.

Indiana Law Bases City of Canton, Ohio v. Harris , 489 U.S. 378 (1989): In addition, the inadequacy in the training program must be closely related to the injury suffered by the plaintiff.

Indiana Law Bases City of Canton, Ohio v. Harris , 489 U.S. 378 (1989): If a training program doesn’t prevent Constitutional violations, policy makers for governmental agencies will eventually be put on notice that a new program is called for. If those policy makers knew or should have known that the program failed, yet continued with the same flawed program, then “deliberate indifference” may be established.

Indiana Law Bases Negligent Retention/Supervision: Negligent retention and supervision is the opposite of respondeat superior . It imposes liability on an employer not for acts committed within the scope of employment but rather for acts committed outside the scope of employment. BGC Entertainment, Inc. v. Buchannan , 41 N.E.3d 692 ( Ind.App . 2015); Scott v. Retz , 916 N.E.2d 252 ( Ind.App . 2009).

Indiana Law Bases Negligent Retention/Supervision: “Proof that a supervisor was negligent or even grossly negligent in failing to detect or prevent constitutional violations is insufficient: ‘The supervisor must know about the conduct and facilitate it, condone it, or turn a blind eye for fear of what they might see. They must act either knowingly or with deliberate…indifference.’” Mayes v. City of Hammond, Indiana , 442 F.Supp.2d 587 (N.D. Ind. 2006).

Defenses to Liability Qualified Immunity: Qualified Immunity applies to governmental officials performing discretionary functions and shields them from liability so long as their actions could reasonably be thought consistent with the rights they are alleged to have violated. Anderson v. Creighton , 483 U.S. 635 (1987).

Defenses to Liability Qualified Immunity: “Qualified immunity” is a defense to civil liability for government officials so long as the conduct complained of does not violate clearly established Constitutional or statutory rights of which a reasonable person would have known. Mullinex v. Luna , 577 U.S. ___ (2015).

Defenses to Liability Qualified Immunity: It affords protection for “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs , 475 U.S. 335 (1986).

Defenses to Liability Qualified Immunity: Example: Can a LEO shoot an unarmed fleeing felon who poses no risk of harm to others? Vs.

Defenses to Liability Qualified Immunity: Example: Can a LEO shoot a reported intoxicated driver, fleeing at high speed, who twice threatened to shoot officers, and who was rapidly approaching a fellow LEO?

Defenses to Liability Indiana Tort Claims Act I.C. §34-13-3-3: “A governmental entity or employee acting within the scope of the employee’s employment is not liable if a loss results from the following: ……

Defenses to Liability Indiana Tort Claims Act I.C. §34-13-3-3: (6) the initiation of a judicial or an administrative proceeding; (7) the performance of a discretionary function; (8) the adoption and enforcement of or failure to adopt or enforce…a law…unless the act of enforcement constitutes false arrests or false imprisonment.

Defenses to Liability Indiana Tort Claims Act I.C. §34-13-3-3: (9) an act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid if the employee would not have been liable had the statute been valid; ……

Defenses to Liability Indiana Tort Claims Act I.C. §34-13-3-3: (21) an act or omission performed in good faith under the apparent authority of a court order…that is invalid, including an arrest or imprisonment related to the enforcement of the court order, if the governmental entity or employee would not have been liable had the court order been valid;”

Defenses to Liability I.C. §34-13-3-8: The governmental entity and employee must be served with a written notice of tort claim within 180 days after “the loss occurs.”

Defenses to Liability I.C. §34-13-4-1: Noncriminal acts or omissions by a governmental employee, within the scope of employment, that is or could subject the employee to personal liability for civil rights violations, shall be indemnified by the governmental entity for any judgment and costs and fees incurred by the employee for defense. Punitive damages judgments may be paid by the governmental entity if it determines that payment is in the best interests of the entity.