The Police Law Blog

By John V. Berry, Esq., www.berrylegal.com

Law enforcement officers face increasing scrutiny in light of recent media events across the country. With such scrutiny comes an uptick in the number of civil lawsuits filed in relation to on-duty (and even off-duty) actions related to a law enforcement officer’s employment.  It is important that law enforcement officers take steps to become aware of the potential for personal liability for actions taken in the line of duty which could result in a personal lawsuit against them.  

PERSONAL CIVIL LIABILITY FOR OFFICERS

Personal liability for a law enforcement officer is just the notion that a law enforcement officer can be held civilly responsible for their actions related to their position.  Lawsuits can be brought against officers under any number of various legal theories, such as intentional injuries (torts) and pursuant to 42 U.S.C. § 1983.  Lawsuits under Section 1983 are the most common against law enforcement officers and can be brought against an officer when he or she violates statutory or constitutional rights under law.  This is commonly referred to as a Bivens action, named after the case of Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

Typical examples of common civil claims against law enforcement officers include:

1.   Those alleging false arrest (sample case)

2.   Those alleging excessive force (sample case); 

3.   Those alleging malicious prosecution (sample case); and

4.   Those alleging that a law enforcement officer failed to intervene in the unlawful actions of a fellow law enforcement officer (sample case).

Usually, when a police department or federal law enforcement agency is sued for a law enforcement officer’s actions, the individual police officer is sued as well. Typically, the principal target of damages by plaintiffs' lawyers are aimed at the police department, due to their ability to pay larger judgments or settlements, but an officer typically is targeted as well.  This can cause significant stress for a law enforcement officer as the civil process unfolds.

OFFICERS ARE USUALLY GIVEN DEFERENCE BY THE COURTS

The good news for law enforcement officers is the majority of cases against officers are dismissed based on law enforcement officer immunity.  Most law enforcement officers do not have unlimited means to pay significantly high judgments out of their own funds and are rightfully concerned about these kinds of cases.  Fortunately, most courts tend to provide a high level of discretion to law enforcement officers as to how they perform their duties.  Quite often a law enforcement officer will be immune to suit because of this high level of deference.  It is the unusual case where a law enforcement officer’s case is not given deference (those typically are the cases that are profiled in the news).  

THE GOVERNMENT OFTEN STEPS IN

The next bit of good news for law enforcement officers regarding personal liability is that the government usually steps in to defend the officer after a civil lawsuit is filed.  Federal agencies,  states and localities typically have laws or regulations that require them to step in and represent an officer sued for official misconduct. These laws vary. It can be the case that the state or locality may represent both the state and the officer in defending against a civil action. It is often in the interests of the government to do so to avoid complicating the legal defense for a case of alleged misconduct. Furthermore, when the government decides to settle a case, they often require the plaintiff to agree to a full release against the officer as well as the government. 

INSURANCE CONSIDERATIONS

A private insurance policy should always be considered by a law enforcement officer.  Law enforcement officers should maintain an insurance policy to cover them for legal defense for civil lawsuits related to duty-related actions and to perhaps pay judgments or settlements.  These policies vary.  It is important for law enforcement officers to explore this option given the litigious nature of law enforcement today.  There are various policies that exist and a law enforcement officer would do well to explore these options.  

CONCLUSION

It is important to understand personal liability issues as a law enforcement officer and for an officer to take steps to protect themselves.  Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070.  The Firm's Facebook page can be found here Berry & Berry Facebook Page.