Civil Liability Book Flashcards by Byron Creekmore

Civil suits increased by ___ from 1967-71

124%

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During a 5 year period, at least ___ of ___ officers were sanctioned for misconduct (theft - sexual assault)

3,000 of 600,000

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Some conclude that no other government group is more exposed to civil liability than who?

Police officers

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Annually, how many civil actions brought against police depts, cities, officers?

30,000

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What % of officers from multiple agencies within a single county had been sued during their careers?

27%

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Police lose about __% of the federal case brought against them. A study done in Texas showed police losing __% of lawsuits.

8 / 22

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The trend is that lawsuits are __ and police are losing more of them. Even win police win, it is __ for the agency.

increasing / expensive

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Female officers showed __ anxiety over being sued than males and __ officers show more concern than do their chiefs

less / lower ranking

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__ fears of civil liability can erode the necessary confidence and willingness to act. These views can foster __ , __, and __ between the police and the community

unrealistic / protectionism / coverups / division

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of the __ police liability case decided by federal courts in __, only __ cases contained a claim of frivolous lawsuit against the police (less than __%)

658 / 2004 / 6 / 9

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How much of all police encounters with those suspected of committing a crime resulted in civil litigation?

1/10th of 1%

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Civil liability is an extremely expensive proposition for officers, agencies, gov’ts and taxpayers due to these 4 things

-cost of liability insurance
-litigation expenses
-out of court settlements
-punitive damage awards

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The cost of an average jury award if liability against a municipality is reported to be about how much? None of these represent the growing trend of settling out of court which make up __% of the results per a Texas study

2 million / 25%

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A __ survey found that __ was the biggest contributor to the rising cost of municipal liability

1996 / police liability

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Allowing citizens to sue the police for misconduct has fostered these 2 things

-better police training
-more responsible LE practices

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When police are held __ for their misconduct, the courts set standards for acceptable and unacceptable behavior and by doing so establish the bounds of what?

liable / professional police practice

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In reviewing a motion to __, a court must construe the complaint in the light most favorable to the complainant and accept all well pleaded facts as __

dismiss / true

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If a case survives motion to dismiss and/or a motion for summary judgement, then it will proceed to __

trial

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The ability of the police to appeal a denial of summary judgement has been restricted by the Supreme court by what 2 case law cases?

-Johnson v Jones 1995
-Swint v Chambers County Comm 1995

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The restriction to appeal a denial of summary judgement has had what 2 effects on police litigation?

-cases now move faster since police defendants can no longer file an automatic appeal of the denial
-more cases will be settled if the only alternative is to proceed to trial

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In cases where there is complete lack of evidence the judge can enter a __ or __ that finds in favor of the officer even when jury has found against

directed verdict / judgement of law

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It is not unusual for police cases to take __ from the event in question to final disposition

3-10 years

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3 trends in police litigation

-has increased sharply since the 1960’s
-successful litigation against police has increased
-significant # of judgements handed down against police despite a good record of defending themselves

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What is a civil legal action between private parties not arising from written contracts?

torts

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Torts are not subject to __, but are addressed by what? Some torts can be both __ and __ As opposed to criminal acts, 2 things:

-criminal punishment / monetary rewards -torts / crime -1. violations of explicit law 2. acts against not only the written law but the interests of the state and community

What are the 3 types of torts under state law?

-strict liability -intentional -negligence

Strict liability: Behaviors __ Elements __ Plaintiff is not required to prove __, and the defendants mental state is not a __

-extremely dangerous -specific conduct or damage -fault / judicial consideration

Intentional tort: Behaviors __ Elements__ Some of the most common examples filed against the police __

-Purposive behavior (intentional) likely to result in damage (does not mean an officer intended to inflict injury or damage) -knowledge, foreseeability, damage or injury -wrongful death, assault & battery, false arrest, invasion of privacy and false light, intentional infliction of emotional distress

Negligence Behaviors __ Elements__

-inadvertent and unreasonable behaviors -legal duty, breach, proximate cause, damage or injury

Court case that curtailed the use of deadly force by officers 2 instances when police may use deadly force

-Tenn v Garner -1. Escape of dangerous felon -2. protect themselves or others from serious physical harm

The threat to do serious bodily harm to another person with the ability to carry out the threat

assault

intentional, impermissible, and offensive contact with another is what?

battery

Plaintiff claiming __ must establish how many factors for successful civil litigation. Name them

-False arrest / 4 1. police willfully detained them 2. detention was against their will 3. detention was made without authority of law 4. person being detained was aware of their confinement

A successful claim of false imprisonment generally requires how many things? Name them

3 1. intent to confine, restrain freedom of movement, restriction of personal liberty 2. unlawful act resulting in restriction of freedom or liberty of movement 3. knowledge of the harm

False imprisonment claims are usually based on what?

conduct of the officer following the arrest

1 way to limit the likelihood of a liability for false arrest is to what?

secure a warrant before the arrest

A simple invasion of privacy consists of how many parts? Name them

3 1. an intrusion 2. that is highly offensive 3. into some matter where there is a legitimate expectation of privacy

What occurs then a police officer gives publicity to a private matter concerning a specific citizen in a fictitious and negative way?

false light invasion of privacy

4 elements to establish a case of negligence

1. a legal duty 2. a breach of duty 3. proximate cause 4. actual damage or injury

Most common legal doctrines barring police liability are what?

sovereign immunity and public duty

Most common defenses to claims of police liability include:

contributory negligence, comparative negligence, assumption of risk, sudden peril

What is 1 of the first cases involving sovereign immunity in the US? Led to which amendment? (Which gave states sovereign immunity)

-Chisolm v Georgia 1793 -11th

Sovereign Immunity: States are protected by the doctrine, but who is not? Who can be sued?

-municipalities -police officers

Sovereign Immunity: Focuses on defendants ___ Bars recovery of __ from state

-conduct -damages

Public Duty Focuses on relationship between __ and __ Bars recovery absent a __

-plaintiff / defendant -special relationship

Contributory negligence Focus on __ conduct Not a common defense

plaintiff's

Comparative negligence Focuses on who's conduct? Mitigates recovery based on what?

-both parties -% of fault

Assumption of risk Focuses on who's conduct? Knowingly engages in what?

-plaintiff's -risky behavior

Sudden Peril Focus on __ conduct in sudden, unexpected emergency Does not apply when what happens?

-defendant's -officers create the peril or emergency by their own misconduct

What provides the most common avenue for suing police for misconduct? The most common being what?

-Federal law -Civil rights act

Why is litigation under civil law more frequent and a greater threat to police personnel than going through criminal charges for violating citizens constitutional rights?

-Juries are sympathetic to rights violations -juries are not likely to impose criminal sanctions on police absent heinous violations

What is the legislation which allows a remedy for deprivation of civil rights that is now the cornerstone of police federal liability litigation?

42 USC Section 1983

citizens seeking redress for civil rights violations can sue officers successfully if they can show these 4 things

1. both plaintiff and defendant are persons within meaning of the statute (person is anyone under jurisdiction of US govt) 2. officer was acting under color of the law 3. there was a violation of federally protected right 4. violation reached a constitutional level

What supreme court case is this? -states cannot be liable under 42 USC section 1983 -Civil rights act of 1871 was a congressional enactment to the widespread deprivations of civil rights in southern states and inability to protect those rights or punish wrongdoers

Will v Michigan Dept of state police

the supreme court uses 3 torts to determine whether conduct constitutes state or merely private action, name the 3

-public function test -state compulsion test -symbiotic relationship of nexus test

conduct that can be redressed under section 1983 is limited to violations of __

federally protected rights

congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of, or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the govt for a redress of grievances

1st amendment

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause and particularly describing the place to be searched and the persons or things to be seized

4th amendment

no person shall be held to answer for a capital or otherwise infamous crime, unless an indictment of a GJ, except in cases arising in the land or naval forces or in the militia, when in actual service in times of war, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor be a witness against theirself, nor be deprived of life, liberty, or property, nor shall have private property taken for public use without just compensation

5th amendment

in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense

6th amendment

excessive bail shall not be required, no excessive fines imposed, nor cruel and unusual punishments inflicted

8th amendment

all persons born or naturalized in the USA and subject to the jurisdiction are citizens of the USA and of the state they reside. No state shall make or force any law which shall abridge the privileges or immunities of citizens of the USA, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws

14th amendment

negligent acts by the police or acts that result in very minor injury, in and of themselves, normally cannot form the sole basis of __

section 1983

who can be held liable under the provisions of section 1983 if police conduct results in the violation of a citizens constitutional rights due to the deliberate indifference of a municipality

municipal governments

municipalities can be held liable for a police officers actions if: 3 things

-the act is a product of an official policy -the act is a product of an organizational custom or practice -in either case, the policy or custom is the "moving force" behind the action

interpretation of the statute requires that an officers violation of a citizens constitutional right to be attributed to a municipal policy or custom either __ or __

created or condoned by a high level municipal policy maker

while all factors indicate the existence of an official policy or custom as well as actual or constructive knowledge on the part of the policy maker, courts view custom in the __ surrounding the constitutional violation

totality of the circumstance

the courts have ruled that the presence or absence of a single factor usually does not determine the liability. What does?

totality of the circumstance

who has held that under the single act exemption, one violation of a constitutional or federally protected right may be sufficient to prove deliberate indifference and hence municipal liability

US supreme court

while there is some confusion among the federal courts on what level of culpability is required for a finding of liability, the recognized standard is __

deliberate indifference

the courts have recognized that __ or an __ may rise to the level of deliberate indifference

-gross negligence -accumulation of related incidents of mere negligence

what is one of the most common forms of municipal liability

failure to act

what is frequently the basis for the failure to act claim brought under section 1983? what case brought this up?

-inadequate or improper training of officers -city of Canton v Harris

the courts have recognized at least 11 situations that are sufficiently customary that they require training, name them

-basic medical care -procedures for arresting fleeing felons -dealing with mentally ill people -strip searches -commission of perjury -warrantless searches -sexual harassment -use of force (deadly and non) -arrest complaint procedures -police retaliation -off duty or 2nd job performance

four defenses to section 1983 afforded to officers but not municipalities are:

-absolute immunity -qualified immunity -probable cause -good faith

if the law is not clearly established or the conduct is reasonable, then an officer has what?

qualified immunity

perjury and/or providing the courts with incorrect information is the only circumstance where the courts recognize what?

absolute immunity for officers

officers cannot be sued for __ under section 1983 so as to not deter testifying altogether

absolute immunity

the best way to demonstrate probable cause is to __

obtain a warrant

facts known later could not have reasonably been known at the time is called what?

good faith

regards officers discretionary duties (deliberation and judgment)

qualified immunity

when officers use force, they are expected to use __

only the amount of force that is necessary and reasonable

excessive force is any force that is __ and __ to accomplish a legal objective

unreasonable / unneccessary

any amount of force used to effect an illegal arrest is __

excessive force

lawsuits alleging the use of excessive force, brutality, assault, battery, can be filed in state courts as what? or in federal courts as what?

-state tort actions -section 1983 claims

the major distinction between state and federal actions is the element of __

constitutional deprivation

the standard of proof in a state case is often __ restrictive than that needed in a federal lawsuit

less

most excessive force cases are filed in __

federal court

supreme court case on police use of deadly force

Tenn v Garner

what was Tenn v Garner case about?

-officer shoots a 15 y/o fleeing a burglary in the back of the head while climbing fence -officer admits he had no reason to believe suspect was armed -officer believed he was acting under "fleeing felon" statute

Tenn v Garner: courts found the officers actions amounted to a __ under 4th amendment

seizure

Tenn v Garner: officer may only seize a suspect by deadly force when?

the officer believes the suspect poses a threat of serious physical harm either to officers or others

2 points to consider in determining immediate danger

-nature of the danger -immediacy of the threat (merely being armed is not enough)

cornerstone of immediate danger requires that the target force be :

-armed or in a group that is physically assaulting officer -capable of inflicting SPI -and actually imminent threat to do SPI

deadly force may be used (not always) when officers reasonably believe suspect has committed a crime involving use, or threatened use of serious physical harm. Which crimes have the courts determined reach this level?

-murder -bank robbery -armed robbery

Which supreme court case? USSC ruled the standard of objective reasonableness must be used to determine whether the use of physical force to restrain was excessive or not

Graham v Connor

all claims of police excessive force are to be analyzed under what?

4th amendment

proper legal standard to use in applying the 4th amendment is what?

objective reasonableness standard

2 part rule of the reasonableness standard

-the reasonableness of officers actions (no 20/20 hindsight, no mind reading) -the reasonableness of the seizure itself