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Police
Civil
Liability
Civil
Liability
Police Pursuits and Civil Liability -
The FBI Law Enforcement Bulletin
- "As many as 40 percent of all motor and
some of these result in nearly 300 deaths
each year of police officers, offenders, or
innocent third party individuals. [2]
Because many police pursuits result in
accidents and injuries, agencies and
officers become subjects of civil lawsuits.
Initiated in state or federal courts, these
lawsuits have resulted cumulatively in
case law that directs law enforcement
agencies to develop pursuit policies. The
U.S. Supreme Court recently issued a
ruling that has changed the threshold of
negligence before an agency or officer
can be held liable, which will impact police
agencies across the United States. [3]..."
The FBI Law Enforcement Bulletin
- "As many as 40 percent of all motor and
some of these result in nearly 300 deaths
each year of police officers, offenders, or
innocent third party individuals. [2]
Because many police pursuits result in
accidents and injuries, agencies and
officers become subjects of civil lawsuits.
Initiated in state or federal courts, these
lawsuits have resulted cumulatively in
case law that directs law enforcement
agencies to develop pursuit policies. The
U.S. Supreme Court recently issued a
ruling that has changed the threshold of
negligence before an agency or officer
can be held liable, which will impact police
agencies across the United States. [3]..."
Civil Liability for Government
Wrongdoing - "Suing the government
is the second most popular indoor sport in
America, and police are often the targets
of lawsuits, with over 30,000 civil actions
filed against them every year, between
4-8% of them resulting in an unfavorable
verdict. With lawsuits against large police
departments, the average jury award is $2
million. This isn't counting the hundreds of
cases settled thru out-of-court
settlements, which, if added up, would
probably run in the neighborhood of
hundreds of millions of dollars. Further, it
may take five years or more to settle a
police liability case."
Wrongdoing - "Suing the government
is the second most popular indoor sport in
America, and police are often the targets
of lawsuits, with over 30,000 civil actions
filed against them every year, between
4-8% of them resulting in an unfavorable
verdict. With lawsuits against large police
departments, the average jury award is $2
million. This isn't counting the hundreds of
cases settled thru out-of-court
settlements, which, if added up, would
probably run in the neighborhood of
hundreds of millions of dollars. Further, it
may take five years or more to settle a
police liability case."
Building on the strength of previous editions, the fourth edition presents a well-
conceived, clearly stated analysis of complex issues confronting law enforcement
officers and administrators. Law enforcement duties sometimes place police officers in
vulnerable positions regarding their legal obligations and expose them to charges of
misconduct. Civil liability is an extremely expensive proposition for police officers, law
enforcement agencies, governments, and—ultimately—taxpayers. Although substantial
resources are often expended by the justice system to resolve liability cases, there are
conceived, clearly stated analysis of complex issues confronting law enforcement
officers and administrators. Law enforcement duties sometimes place police officers in
vulnerable positions regarding their legal obligations and expose them to charges of
misconduct. Civil liability is an extremely expensive proposition for police officers, law
enforcement agencies, governments, and—ultimately—taxpayers. Although substantial
resources are often expended by the justice system to resolve liability cases, there are
Critical Issues in Police Civil Liability, Fourth Edition
by Victor E. Kappeler
by Victor E. Kappeler
benefits to citizens. When the government assumes the responsibility to provide service or to protect the
public, people injured by inadequate performance of those responsibilities deserve compensation;
innocent parties who suffer injury should have an avenue for redress. The potential for litigation has been
an impetus for better training and more responsible practices.
public, people injured by inadequate performance of those responsibilities deserve compensation;
innocent parties who suffer injury should have an avenue for redress. The potential for litigation has been
an impetus for better training and more responsible practices.
1. The Scope and Impact of Police Civil Liability
The Incidence of Civil Suit / Police Fear of Litigation / Frivolous Lawsuits / The Cost of Civil Liability / The
Benefit of Civil Liability / The Process of Civil Litigation / Summary
2. The Fundamentals of State Tort Law
Police Liability and State Tort Law / Historical Barriers and Defenses to Police Liability / Summary
3. The Fundamentals of Federal Liability Law
The Civil Rights Act of 1871 / Municipal Liability under Section 1983 / Administrative Negligence and
Deliberate Indifference / Municipal Liability for Failure to Train / Defenses to Section 1983 Lawsuits /
Summary
4. Civil Liability for Police Use of Excessive Force
Excessive, Deadly, and Nondeadly Force /State and Federal Claims / Federal Standards Governing the
Use of Deadly Force /Standards Governing the Use of Nondeadly Force / Liability for Indirect Excessive
Force / Failure to Intervene / Summary
5. Police Civil Liability for High-Risk Drug Enforcement Operations
Search and Seizure Law in Drug Operations / Drug Detection and Probable Cause / Summary
6. Police Liability for Failure to Protect: Abandoning Citizens in Dangerous Places
and Situations
Governmental Liability for Third-Party Criminal Victimization / Abandoning Vehicle Occupants and Qualified
Immunity / Assurances of Police Protection / Case Analysis / The Future of Federal Third-Party Liability
Cases / Summary
7. Police Civil Liability for Negligent Pursuits
Statutory Immunities / Negligence Principles and Police Pursuit / Defenses to Negligent Operation /
Summary
8. Police Civil Liability for Failure to Arrest Intoxicated Drivers
Barriers to Liability / The Public Duty Doctrine / Special Relationship / Summary
9. The Liability of Traffic Officers: Negligence at Accident Scenes
The Duty to Warn and Protect / The Duty to Render Assistance / The Duty to Investigate Accidents / The
Duty to Secure Accident Scenes / Summary
10. Police Liability for Failure to Prevent Detainee Suicide
The Framework of Negligence Litigation / The Special Duty of Care / Police Conduct and Breach of Duty /
Defenses to Detainee Suicide / Summary
11. Shifting Conceptions of Police Civil Liability and Law Enforcement
Legal Assumptions and Police Civil Liability / Police Innovation and Liability / Implications for the Future
Police Executive
As a police officer, you're going to experience some dangerous situations.
While some of those experiences will be stressful, they'll be over pretty
quickly. If you act incorrectly, or stupidly, whether or not you're under stress,
the stress you'll experience from being sued will last for many months or even
years. Any police officer can be sued for any number of things, and you could
find yourself being named in a lawsuit just for being at the wrong place at the
wrong time.
I was a police officer for 32 years, and I wasn't tucked away in some cushy job
protected from the real world. Even though I was constantly exposed to the
dangers of police civil liability, I was never sued. In the beginning when I was
an inexperienced rookie as you'll be, I was lucky to be working with competent
police officers under competent supervision. As time went on, I learned to
assert myself when I knew or suspected that something was being done, or
about to be done, incorrectly.
While some of those experiences will be stressful, they'll be over pretty
quickly. If you act incorrectly, or stupidly, whether or not you're under stress,
the stress you'll experience from being sued will last for many months or even
years. Any police officer can be sued for any number of things, and you could
find yourself being named in a lawsuit just for being at the wrong place at the
wrong time.
I was a police officer for 32 years, and I wasn't tucked away in some cushy job
protected from the real world. Even though I was constantly exposed to the
dangers of police civil liability, I was never sued. In the beginning when I was
an inexperienced rookie as you'll be, I was lucky to be working with competent
police officers under competent supervision. As time went on, I learned to
assert myself when I knew or suspected that something was being done, or
about to be done, incorrectly.
Of course...when I began my police career in 1971, the litigious environment
was nothing as compared to today. When you hear a lawyer make the
statement, "We're a nation of laws," that's no understatement. When it
comes to liability, there's new laws being created all the time, and there are
countless lawyers searching for deep pockets. Governments have the deepest
pockets around, and governments are soft targets for litigation that involves
was nothing as compared to today. When you hear a lawyer make the
statement, "We're a nation of laws," that's no understatement. When it
comes to liability, there's new laws being created all the time, and there are
countless lawyers searching for deep pockets. Governments have the deepest
pockets around, and governments are soft targets for litigation that involves
The qualified immunity test requires a two-part analysis: "(1) Was the law governing the official's
conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct
was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988),
cert. denied, 490 U.S. 1075 (1989).
conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct
was lawful?" Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988),
cert. denied, 490 U.S. 1075 (1989).
alleged police misconduct with most lawsuits concluding in out of court financial settlements.
What about immunity? It's true that, as a police officer, you'll have the protection of qualified immunity.
However, if you act outside the scope of that immunity, you could find yourself in a very tight spot. Most police
departments will take the financial hit for you as long as your conduct is not criminal, grossly negligent, or
clearly unreasonable. When you stop to think about it...this is not a difficult standard to meet. Your best
What about immunity? It's true that, as a police officer, you'll have the protection of qualified immunity.
However, if you act outside the scope of that immunity, you could find yourself in a very tight spot. Most police
departments will take the financial hit for you as long as your conduct is not criminal, grossly negligent, or
clearly unreasonable. When you stop to think about it...this is not a difficult standard to meet. Your best
protection against civil liability will always be reasonableness.
You'll learn that, in police work, things can change rapidly. You
might make a reasonable response to a perceived situation only
to have your original perception debunked by changing
circumstances. As long as you maintain continuity of
reasonableness, even under changing circumstances, you'll never
go wrong.
I'm going to give you an example where you could find yourself
named in a civil rights violation through no fault of your own. In
this example, you could, theoretically, have prevented this entire
fiasco. Realistically, however, your position as a rookie police
officer would probably preclude you from changing this scenario:
You'll learn that, in police work, things can change rapidly. You
might make a reasonable response to a perceived situation only
to have your original perception debunked by changing
circumstances. As long as you maintain continuity of
reasonableness, even under changing circumstances, you'll never
go wrong.
I'm going to give you an example where you could find yourself
named in a civil rights violation through no fault of your own. In
this example, you could, theoretically, have prevented this entire
fiasco. Realistically, however, your position as a rookie police
officer would probably preclude you from changing this scenario:
You're working the 4x12 shift when your dispatcher directs
you, and another uniformed officer, to meet a supervisor at
a particular location. You know from the call number that
you're meeting the supervisor of your district's drug
enforcement squad.
You arrive at the location which is a parking lot being used
as a staging area prior to the execution of a search and
seizure warrant. You have no way of knowing this, but
you're going to have a really lousy night. Aside from you
being new and inexperienced, the drug unit's sergeant is
brand new, and it's his first night supervising the squad.
The officer who wrote the search and seizure warrant is on
leave. The warrant is being executed at this time, because
another officer in the drug unit received information from
an informant that a large amount of cocaine had been
delivered to the house in question.
As the squad prepares to leave the parking lot, the sergeant
briefs you and the second uniform officer. He assigns the
other officer to cover the rear of the house with a
plainclothes officer while you'll accompany the raiding party
through the front door. He explains that the squad is
executing a no-knock warrant, so you'll have to be prepared
to move fast once you arrive in front of the house.
This is your first search and seizure warrant, so you're
obviously apprehensive as you drive off the lot immediately
you, and another uniformed officer, to meet a supervisor at
a particular location. You know from the call number that
you're meeting the supervisor of your district's drug
enforcement squad.
You arrive at the location which is a parking lot being used
as a staging area prior to the execution of a search and
seizure warrant. You have no way of knowing this, but
you're going to have a really lousy night. Aside from you
being new and inexperienced, the drug unit's sergeant is
brand new, and it's his first night supervising the squad.
The officer who wrote the search and seizure warrant is on
leave. The warrant is being executed at this time, because
another officer in the drug unit received information from
an informant that a large amount of cocaine had been
delivered to the house in question.
As the squad prepares to leave the parking lot, the sergeant
briefs you and the second uniform officer. He assigns the
other officer to cover the rear of the house with a
plainclothes officer while you'll accompany the raiding party
through the front door. He explains that the squad is
executing a no-knock warrant, so you'll have to be prepared
to move fast once you arrive in front of the house.
This is your first search and seizure warrant, so you're
obviously apprehensive as you drive off the lot immediately
behind the sergeant's unmarked car. You're the third car in line with the lead car occupied by a
plainclothes officer and the uniformed officer who will cover the rear of the house. The fourth unmarked
car is behind you filled with members of the drug unit. As you're about to enter the target block you see
speeds up. You're already under pressure, so it doesn't help when the car behind you speeds around you,
before you have a chance to accelerate. Seconds later you're screeching to a stop behind the two
unmarked cars. The sergeant wasn't kidding when he told you to move fast. You're barely out of your
car as you see the plainclothes guys almost to the front door. You make it to the tail end of the group just
as the ram smashes into the front door. At this point you're just along for the ride as you follow a bunch
of screaming, gun wielding cops single file through the front door.
Amidst the officers continuously shouting, "POLICE...POLICE," you hear a woman screaming at the top
of her lungs! The screams of panic multiply, and, by the time you're inside the front room of the house,
you count four women...one adult, two teenage girls, and one elderly woman. The adult and the two girls
are in constant scream mode as the sergeant grabs your arm. He tells you to secure the front room and
occupants as the raid team continues to fan out throughout the house. Fortunately, as the room empties,
the screaming women focus in on you, and the screaming turns to sobbing. The sight of your uniform has
created a calming effect; however, the adult woman's sobbing soon turns to anger as her panic subsides.
You do your best to answer her questions while she protests that a terrible mistake has been made.
Shortly into the event, you glance into the kitchen where you see the sergeant and another officer
intently examining the contents of the search warrant. The sergeant's body language begins to make you
suspect that something is amiss. You know what I'm talking about...hands through the hair, staring at
the ceiling, etc. Moments later, the raid team is filing out the front door, and the sergeant directs you to
follow while the sergeant stays behind.
plainclothes officer and the uniformed officer who will cover the rear of the house. The fourth unmarked
car is behind you filled with members of the drug unit. As you're about to enter the target block you see
speeds up. You're already under pressure, so it doesn't help when the car behind you speeds around you,
before you have a chance to accelerate. Seconds later you're screeching to a stop behind the two
unmarked cars. The sergeant wasn't kidding when he told you to move fast. You're barely out of your
car as you see the plainclothes guys almost to the front door. You make it to the tail end of the group just
as the ram smashes into the front door. At this point you're just along for the ride as you follow a bunch
of screaming, gun wielding cops single file through the front door.
Amidst the officers continuously shouting, "POLICE...POLICE," you hear a woman screaming at the top
of her lungs! The screams of panic multiply, and, by the time you're inside the front room of the house,
you count four women...one adult, two teenage girls, and one elderly woman. The adult and the two girls
are in constant scream mode as the sergeant grabs your arm. He tells you to secure the front room and
occupants as the raid team continues to fan out throughout the house. Fortunately, as the room empties,
the screaming women focus in on you, and the screaming turns to sobbing. The sight of your uniform has
created a calming effect; however, the adult woman's sobbing soon turns to anger as her panic subsides.
You do your best to answer her questions while she protests that a terrible mistake has been made.
Shortly into the event, you glance into the kitchen where you see the sergeant and another officer
intently examining the contents of the search warrant. The sergeant's body language begins to make you
suspect that something is amiss. You know what I'm talking about...hands through the hair, staring at
the ceiling, etc. Moments later, the raid team is filing out the front door, and the sergeant directs you to
follow while the sergeant stays behind.
Okay...you've probably surmised that the wrong house was raided. The main problem rested with the east/west
direction designation in front of the address. While the address was correct, the face of the warrant indicated
east instead of west (example: E. Robinson Street instead of W. Robinson Street). Within the probable cause
section of the warrant the address was identified three ways...E and W or without any direction designation.
physical description of the dwelling was brief and inadequate. While the outside physical description to the
house raided was similar to that described in the warrant, there were noticeable differences.
In this scenario, the sergeant did the right thing...finally. He stayed behind, fell on his sword, and he provided
the occupants of the dwelling with all the information needed to speed along the impending lawsuit. While
there will certainly be a lawsuit resulting in a very generous financial settlement, the sergeant limited further
damage by immediately ceasing the raid as soon as he was aware of the mistake. While you'll be named in this
lawsuit, your involvement is minimal, and you'll be able to put it into the positive aspect of a great learning
experience.
Now...you ask, "What could I have done to prevent such a mistake from occurring?" Answer: You could have
read the warrant. Your fresh eyes would have quickly picked up the errors regarding the address. Your
familiarity with the area would have made you say, "Hey, the way this reads, it could be one of two locations."
Had you ask to examine this warrant, the sergeant might have said, "Sure, officer," as he graciously handed
you the warrant. On the other hand, the sergeant might have said, "We don't have time for that. Just do as
you're told." Had you received the latter response, you would have complied. But...consider that you'd
previously been part of a similar botched raid. Do you think you'd settle for anything less than your review of
that warrant?
It's bad enough if you get sued for something resulting from your own actions; however, finding yourself being
sued due to the mistakes of others is a real bummer. Anytime you're going to be intimately involved in any
enforcement activity instituted by others, it's your right and obligation to know what's going on. Remember
the second uniformed officer in the scenario? Since your involvement could be termed as minimal, his
involvement could be considered as even less. However, let's say that one of the girls had been in the kitchen
cutting a loaf of bread. When the front door came crashing in, and the other women began screaming, she
might have hysterically fled through the back door still clutching the bread knife with its menacingly long
blade. What if she had ignored, or simply not comprehended, the other officer's command(s) to stop and drop
the knife?
I chose the search warrant and raid scenario, because I can't think of too many things worse for an innocent
person(s) to experience at the hands of police officers. Imagine yourself sitting in your living room with your
family when your front door literally explodes. Worse yet, since you're a police officer, you may be armed.
You may have just arrived home, or you're preparing to leave, and you're wearing your holstered off-duty
revolver or pistol. When that door explodes, you'll instinctively go for your weapon. While you may quickly
identify the intruders as police officers, they'll only see a suspect pointing a gun at them.
As inherently dangerous as the execution of a search warrant in the context of a raid can be, the bad guys
generally expect and accept the raids as an occupational hazard. With the exception of the odd guy locked in
the bathroom flushing drugs, the rest of the occupants usually accept their fate. I'm not minimizing the
danger of raiding a real drug house. I'm only saying that the bad guys expect a violent entry...innocent people
don't. When the bad guys react with violence, it's criminal. When innocent people react with violence, it's just
simply tragic.
Ah...you say, "Wait just a minute. A judge had to review and sign the search warrant in your scenario, so how
would such a flawed warrant get by a judge?" Trust me, it happens. While some judges carefully review
everything they sign, others do not. There's this thing called judicial immunity. While nothing is ever
absolute, judicial immunity is the closest thing to absolute that you'll ever see.
direction designation in front of the address. While the address was correct, the face of the warrant indicated
east instead of west (example: E. Robinson Street instead of W. Robinson Street). Within the probable cause
section of the warrant the address was identified three ways...E and W or without any direction designation.
physical description of the dwelling was brief and inadequate. While the outside physical description to the
house raided was similar to that described in the warrant, there were noticeable differences.
In this scenario, the sergeant did the right thing...finally. He stayed behind, fell on his sword, and he provided
the occupants of the dwelling with all the information needed to speed along the impending lawsuit. While
there will certainly be a lawsuit resulting in a very generous financial settlement, the sergeant limited further
damage by immediately ceasing the raid as soon as he was aware of the mistake. While you'll be named in this
lawsuit, your involvement is minimal, and you'll be able to put it into the positive aspect of a great learning
experience.
Now...you ask, "What could I have done to prevent such a mistake from occurring?" Answer: You could have
read the warrant. Your fresh eyes would have quickly picked up the errors regarding the address. Your
familiarity with the area would have made you say, "Hey, the way this reads, it could be one of two locations."
Had you ask to examine this warrant, the sergeant might have said, "Sure, officer," as he graciously handed
you the warrant. On the other hand, the sergeant might have said, "We don't have time for that. Just do as
you're told." Had you received the latter response, you would have complied. But...consider that you'd
previously been part of a similar botched raid. Do you think you'd settle for anything less than your review of
that warrant?
It's bad enough if you get sued for something resulting from your own actions; however, finding yourself being
sued due to the mistakes of others is a real bummer. Anytime you're going to be intimately involved in any
enforcement activity instituted by others, it's your right and obligation to know what's going on. Remember
the second uniformed officer in the scenario? Since your involvement could be termed as minimal, his
involvement could be considered as even less. However, let's say that one of the girls had been in the kitchen
cutting a loaf of bread. When the front door came crashing in, and the other women began screaming, she
might have hysterically fled through the back door still clutching the bread knife with its menacingly long
blade. What if she had ignored, or simply not comprehended, the other officer's command(s) to stop and drop
the knife?
I chose the search warrant and raid scenario, because I can't think of too many things worse for an innocent
person(s) to experience at the hands of police officers. Imagine yourself sitting in your living room with your
family when your front door literally explodes. Worse yet, since you're a police officer, you may be armed.
You may have just arrived home, or you're preparing to leave, and you're wearing your holstered off-duty
revolver or pistol. When that door explodes, you'll instinctively go for your weapon. While you may quickly
identify the intruders as police officers, they'll only see a suspect pointing a gun at them.
As inherently dangerous as the execution of a search warrant in the context of a raid can be, the bad guys
generally expect and accept the raids as an occupational hazard. With the exception of the odd guy locked in
the bathroom flushing drugs, the rest of the occupants usually accept their fate. I'm not minimizing the
danger of raiding a real drug house. I'm only saying that the bad guys expect a violent entry...innocent people
don't. When the bad guys react with violence, it's criminal. When innocent people react with violence, it's just
simply tragic.
Ah...you say, "Wait just a minute. A judge had to review and sign the search warrant in your scenario, so how
would such a flawed warrant get by a judge?" Trust me, it happens. While some judges carefully review
everything they sign, others do not. There's this thing called judicial immunity. While nothing is ever
absolute, judicial immunity is the closest thing to absolute that you'll ever see.
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