Session 2 Week 4 Flashcards
Sovereign Immunity
Started with either Roman Law or English Common Law based on the belief that the King could do no wrong.
Sovereign Immunity, the great concern from the states was what?
Who ultimately ruled, the federal Government or the individual state.
The 11th amendment does what?
Limited the judiciary and shielded government with sovereign immunity. The judicial powers of the US shall not be construed to extent to any suit in law or equity commenced or prosecuted against one of the US citizens of another state by citizens or subjects of any foreign state.
In 1821 in Cohen V Virginia, the supreme court ruled the Federal Government was immune but?
citizens could bring suit against a state if the action was based on a constitutional guarantee and was later amended to prohibit suits absent the states consent.
In 1834 the Supreme Court held in US v Clark that even suits based on constitutional guarantees would be barred; why?
Public service would be hindered and public safety endangered if the state could be subjected to a suit.
Today while states are still protected, unless voluntarily relinquish their protection, municipalities are not. Therefore, municipal officers are?
susceptible to civil suit.
When should pursuits be authorized?
Exigent circumstances where their is a reasonable belief that the continuing conduct of the violator presents an immediate and life threatening danger. Murder, Sex Bat, Manslaughter etc.
Supervisor responsibilities in a pursuit?
Get on radio
determine reason for pursuit
clear traffic
Air Support K-9 (K-9 not involved in pursuit)
# of vehs involved
conditions road weather speed congestions
coordinate other units report to scene
With pursuits, keep foremost ?
The community comes first.
More cops are killed by______ than _______?
Crashes than bullets
Three old rules in order?
Sovereign Immunity
Negligence/Duty
Proximate Cause
Municipalities lost their sovereign immunity in high speed pursuits based on what case law?
City of Pinellas Park Vs. Brown (7/23/1992)
In the City of Pinellas Park v Brown it stated in the absence of an emergency…?
The method chosen for engaging in hot pursuit will remain an operational function that is not immune from liability if accomplished in a manner contrary to reason and public safety.
In Pinellas Park V Brown there were two main points. What were they?
The actions were contrary to Reason and Public Safety. At the officer failed to clear the intersection with the pursuit coming.
Proximate Cause: Definition of foreseeability issue
“Human experience suggests serious bodily injury likely to result based upon alleged facts.”
Fourth Amendment Reasonableness standard states what as it applies to pursuits?
High speed police chases with n intent to harm suspects physically do not give rise to liability under the 14th amendment. In the Lewis case the court indicated that a seizure must be an intentional act, an accidental seizure does not apply for 4th amendment purposes.
Reasonableness standard (4th amendment): Allegation that a pursuit was undertaken with deliberate indifference to passenger survival was?
insufficient to state a substantive due process claim.
In Scott v Harris it defined two things about PIT
PIT is deadly use of force and reasonableness standard applies, meaning if there are others who would be endangered.
Key factors in developing police pursuit policies
Use of force, roles and responsibilities, communications responsibilities, environmental conditions, reasons for initiating the pursuit, reasons for terminating the pursuit, interjurisdictional pursuits, vehicles, use of emergency warning devices, use of stopping devices (Most will result in use of force, Supervisor must take charge)
Supervisor’s responsibilities
Time place location supervisor take control.
Must come on the air and take charge
Need unambiguous reason for the pursuit
Needs to limit the # of units involved
Needs to direct units or other resources
Need to maintain radio contact with dispatch and relay updates as to operational or tactical potions and conditions.
Negligent appointment defined?
The hiring of an employee who was not qualified for the position. A cause of action exists against an employer for negligent hiring or retaining in his employment, The employee he knew or should have known was unfit for the job so as to create a danger of harm to third parties.
Deliberate indifference
You knew or should have known that your act or omission to act caused harm or created the danger of harm.
10 steps to hire
1 Advertise 2 short form application 3 written exam with bearing on law enforcement (pass/fail) 4 Agility test with applicant responsible for doctors approval (pass/fail) 5 long form application by hand in ink with statement on omission or admission 6 oral board (pass/fail) 7 Polygraph or CVSA (used as tool for background 8 background (pass/fail) 9 conditional offer (is specific) 10 psych/medical exam
Negligence hiring claim
The employer’s negligence in hiring or retaining the employee was the proximate cause of the injury
Under a facially valid screening program a single incident of hiring is not sufficient to show liability unless a reasonable background examination would lead a reasonable policy maker to conclude that to the applicant would lead to a deprivation of a plaintiff’s constitutional right.
Recommendations to avoid Liability: what is the most important component in the human resources system
Selection process
What should you obtain from the applicant with their application?
Authorization to contact all former employers educational institutions and personal references
Import things to do in a background
Contact each personal reference listed and follow up
Ask all former or existing employers and references to the applicants honesty competency reliability and any other pertinent information
What is required from anyone who served in the military
DD214
What guidelines should you follow when doing background?
FDLE and comply with FSS 943.13 officer minimum qualification
In both negligent hiring and negligent retention liability cases it is necessary to?
allege deliberate indifference
Negligent hiring is the ?
Breech of the employers’ duty to only hire qualified employees capable of performing the task in the job description.
Negligent retention is
the basis for the employer’ liability occurs during the course of employment
In negligent retention cases the employer becomes aware or should have become aware of the employees unfitness for employment and?
the employer fails to take further action such as investigation discipline retraining discharge or reassignment and is subject to the charge of deliberate indifference and negligent retention.
The importance of the probationary term can be the most valuable time for the employer to
Evaluate the fitness for continued employment
The necessity for a performance appraisal system requires what of supervisors
Constant retraining on how to complete them. Before transfers employees should take eval with them
Negligent assignment defined
The assignment of employees to positions or tasks for which they are either unqualified or ineligible
Negligent entrustment defined
The requirement for the agency to prevent or disallow an employee’s use of the equipment or materials they are not qualified to use.
Failure to train is a custom/practice only if
Training is inadequate
(Look to see if the training is related to specific duties or tasks. Look at rules and regulations and procedural manuals.)
(It is not enough to relate that the employee/supervisor was not trained properly. The failure may be due to other mistakes.
Inadequate training in high-risk areas such as firearms, pursuit driving, and the use of force can constitute?
Deliberate Indifference.
There should be 3 personnel jackets for every employee. Where are they?
Human Resources
Internal Affairs
Training
Many administrators are under a mistaken idea that academy and/or statutory mandated requirements for , frequently the training is reviewing officer training act as a bar to civil liability. Remember state statutes and standards serve only as?
a minimum plateau for certification. They do not address the sufficiency of training or how the training is related to spIecific high-risk tasks
Case study Gold v City of Miami: In presenting evidence that deliberate indifference to training issues was the cause for injury the compliant needs to show…?
There was an obvious need for more or better training and that the employer knew or should have known that their failure to adequately train would result in a foreseeable injury
Frequency of training, frequently the training should be?
Reviewed, evaluated, and modified.
Judicious administrators need to do what in regards to training?
Voluntarily subject training to a critical review as if they were an injured plaintiff seeking to recover damages.
Inadequate/insufficiency of supervision: The agency and its supervisors have a duty to?
Provide proper supervision
To prove inadequate or insufficient training you must do what?
Show personal involvement in wrongful act to attach liability
Needs to show deliberate indifference
A supervisor is not liable solely because a subordinate commits a constitutional wrong however supervisors may be liable when the failure to direct reflects a conscious indifference to constitutional rights.
Steps to minimize liability: a good supervisor will set up?
controls that enable them to take corrective action and guide employees within policies and procedures
To minimize liability there needs to be?
a system that allows for the delegation of tasks and maintains a motivating climate.
To minimize liability employees should be given?
responsibility in a step-by-step manner and supervisors can demonstrate a documented history of supervisory control and corrective instructions.
Failure to direct is from not doing seven things. What are they?
- Anticipating problems arising in the field
- Minimizing police discretion at the operational level
- Promulgate comprehensive written directives that guide police behavior.
- Policy and procedure books should be kept in a manner to include an effective date.
- In order for the policy manual to be effective they must be kept current with documented distribution and inspected by supervisors
- New policies need to be explained and discussed with examples given and signed for by the employee
- Supervisor policy manuals serve a seperate purpose from Departmental policies and procedures.
Things to do when reviewing policies
A. Is the policy current?
B. Does the organization/division/unit/section operate in the same way it did when the policy was written?
C. Has the policy interfered with operations?
No policy should have a sentence more than
25 words and should not contain words that have to be looked up. Give examples of the policy in the policy. written a simple as you can make it.
Things to do when reviewing policies?
D. Has the policy adversely affected employee moral or productivity?
E. Have complaints resulted from the policy?
F. Are there laws, ordinances, contractual language, or lawsuits that affected the manual?
Things to do when reviewing policies?
G. Has the policy been uniformly and consistently enforced?(investigated and addressed)
H. Is there a standard operating procedure connected to the policy?
I. Is the policy necessary?
J. Does the policy reduce legal exposure in personnel matters?
Failure to discipline: The failure to correct problems that you are aware of or should be aware of may?
Constitute a custom or unwritten policy
Problems that are unaddressed may become a custom or policy when:
- The organization tacitly sanctions the actions
2. Exhibits deliberate indifference toward police misconduct
Why do we discipline?
Correct conduct.
Failure to discipline can mean?
Big Liability
Just cause for discipline
- A violation of rules where the charges have been factually proven
- Make sure the punishment is proportionate
- The employee conduct was thoroughly investigated.
- Look at desperate treatment and conduct similar
- Was the action or inaction of the employee a by product of training, policy or supervision
Just cause for discipline
- Review the employee’s history
- Were there mitigating circumstances
- Progressive or corrective discipline
- Examined for motivated anti-union bias
- Was the rule clear, understandable and unambiguous
- Would the officer engage in similar conduct in the future
- Was the employee accorded due process.,
Failure to discipline relates to the department’s failure to ?
Provide an effective system of accountability it goes with an inadequate citizens complaint process
Discipline Considerations
A;;elate agencies courts mediators and particularly juries are sympathetic for employees terminated without warning.
A progressive discipline system should be
a rigid policy system of specific offenses steps and penalties such as verbal warnings written warnings, terms of suspension and incidents of termination
Things to remember about discipline. Two things
- It is often necessary to go directly to termination
- Even though we label a oral reprimand as being only oral it still needs to be documented in some format for evaluation purposes.
The five “W’s” of the written reprimand
Who what where when and why
Due process
Tenured public employees have property interest in the continuation of their employment. Disciplinary action that adversely affects their employment or terminates their employment is subject to the due process clause of the 14th amendment which means they must be given notice of any charges brought against them.
Stigma Applies when?
derogatory information such as dishonesty instances of moral turpitude or other labeling types of allegations impair an employees ability to seek employment and or impairs their reputations with the professional community
Probationary termination does not apply
Stigma where allegations impose a stigma on the employee they have a right to a ?
Liberty interest type hearing “Loudermill hearing” which is a pre termination hearing
Failure to protect findings of liability cases are rare based on two factors
- doctrine of sovereign immunity and
2. the “duty at large Rule” or “Public Duty Rule”
Employee Privacy, most states recognized some type of privacy issue tort, they fall into four types of torts.
- Commercial Appropriation of a name.
- Publicity that places an individual in a false light.
- Unreasonable intrusion into the solitude or seclusion of an individual, physical or otherwise.
- Unreasonable publication of private facts
(It is usually number four that concerns PD’s and employee investigations.
Intrusions usually mean…
surveillance or unauthorized physical presence, breaking and entering, or unauthorized photography and intrusion into private activities and other such matters.
Searches are covered by the 4th amendment and states
that it protects people to be secure in their persons houses papers and other effects against unreasonable searches and seizures.
The SCOTUS has recognized that public employees have a reasonable expectation of privacy in
their effects including their desk file cabinets lockers and briefcases
Drug Testing is not prevented by the 5th amendment however
blood urine follicle and breath tests constitute a search and under the fourth amendment all searches must be reasonable and job related
Departmental Rules and Regulations: Rules are defined as
Departmental directives that carry the weight of a direct order by command personnel
Regulations are defined as
Delineate employee behavior in a broader scope,
Policies are defined as
Guidelines to behavior that conform to pre-described avenues of employer design.
Procedures are defined as
How to accomplish pre-described tasks
In the construction of rules, regs, policies etc be sure to not
over legislate the behavior of the employee so as to stifle their situational evaluation of an incident
When constructing policy procedures rules etc, it is imperative in the eyes of the courts to ensure..
the agency has manipulated these examples in a way that would have them apply specifically to the agency’s employees demographic service area and fall within the laws and ordinances of the jurisdiction
Speech issues; most issues concern public vs private speech, there is the first amendment; however when government employees speak not as government representatives but as
Private citizens on matters of public concern their right to freedom of speech must be weighed against the government’s interest.
Speech Issues whistle blower act, the act must be
a violation of law to qualify for whistle blower
Image issues, the courts have continually supported the employer in their efforts to have their employees uniform in appearance for purposes of:
- Recognized identification
- Promoting esprit de corps
- Issues of uniformed authority
In order to be sued for Use of Force the plaintiff must show?
That it is a result of the action of the defendant that the plaintiff was deprived of some right, privilege, or immunity guaranteed by the constitution or laws of the US and that the defendant acted uner color of state or local law.
The use of force is a seizure s used to determine objective reasonable
the 4th amendment
Objective reasonableness defined
it is determined as of the instant the force was used. The lawfulness of the officer’s decision will turn on the facts and circumstances know to the officer at the time the force was used. What was determined or discovered after the force was used cannot be used to justify the use of force and would normally not be admissible as evidence
Factors used to determine objective reasonableness
The scope of the intrusion The manner of intrusion Place where intrusion occurred Need to perform official duties Justification of intrusion Facts and circumstances
Factors used to determine objective reasonableness continued
Severity of crime at issue
Did suspect pose immediate threat to officer or others
Did suspect actively resist
Did suspect attempt to evade arrest by fleeing
Supreme Court recognized that police must make split second decisions in circumstances which are tense uncertain and rapidly evolving and this in determining
whether or not excessive force was used, the court or jury should stand in the shoes of the officer at the time and under the ci8rdumstances the force was used as opposed to judging with the benefit of hindsight
Under 18 U.S.C. 242 it is necessary to prove willful intent for use of force cases as well as
If the officer has probable cause to believe a felony has occurred or that citizens or the officer are threatened with death or serious physical harm from a fleeing felon, the use of force may be justified
The 8th amendment prohibits
the imposition of cruel and unusual punishment. It only applies to persons who have been convicted of a criminal offense and are incarcerated **applies to convicted persons only and prohibits the unnecessary and wanton infliction of pain.
8th amendment continued
Characterized by obduracy i.e. holding against good or moral influence and wantonness
Good faith effort to maintain or restore discipline or order
Extent of injury inflicted
Any attempt to temper severity of force
The only four reasons to use force
Affect an arrest
Prevent an escape
Self-Defense
Protection of another person
ADA defines disability to mean?
A physical or mental impairment that substantially limits one or more of the major life activities of an individual
and
A pattern or record of having such impairment
ADA does not require
Affirmative action to hire or promote individuals with a disability
ADA exists to
prohibit discrimination in employment against qualified individuals
Two pronged disability test
The individual must have a physical or mental impairment
and
The impairment must substantially limit one or more substantially limit one or more of the individual’s major life activities
Example of physical or mental impairments
Any physiological disorder
Cosmetic disfigurement
anatomical loss affecting one or more of the following systems (neurological special sense organs speech organs reproductive hemic skin musculoskeletal respiratory cardiovascular digestive lymphatic endocrine
The physical or mental impairment must substantially limit one or more of the individuals major life activities such as
caring for ones self Performing manual tasks Walking Seeing Speaking Breathing Learning Working
What is the difference between simple negligence and
Simple negligence is insufficient to establish an administrator liability for inadequate training supervision or controlling subordinates
Deliberate indifference is the final policy authority knew or should have known that actions taken by them or their failure to act could cause the deprivation of constitution guarantees and requires proof of specific knowledge of risk of harm and disregard for the risk by failing to take reasonable steps to prevent it
Negligence
a breach of a legal duty owed to the plaintiff by any action of the defendant which is the proximate cause of an injury to the plaintiff that falls below a reasonable standard of care. (Reasonable person)
Negligence Per Se
Conduct whether of action or omission which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances either because it is a violation of a statute or valid municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilt of it.
Foreseeability problems
Defendant’s liability must stop short of far-reaching and bizarre consequences in determining proximate causes, The difficulty lies in defining where the cut off should be. The difficulty in formulating mechanical rules that would apply to all cases is an i8mpossible task, there fore the matter must be determined case by case.
Foreseeability
The defendant is liable, as a general rule only for those consequences of his negligence that were reasonable foreseeable at the time he acted. A reasonable person would know if the activity involved in would result in harm
BFOQ
Bona fide occupational qualifications employers may legitimately discriminate in employment practices, hiring transfer training and assignment if the employer can show a legitimate and necessary business/occupational reason; job relatedness
Who sets the minimum wage, overtime pay, equal pay, record keeping and child labor standards for employees.
Fair Standards Labor Act
Any person acting directly or indirectly in the interest of an employer in relationship to an employee and includes a public agency.
Employer
Any individual employed by an employer.
Employee
Sexual Harrasment
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
