Civil Law and Liability Chapter 13 Shifting Directions Dr. Andrew Fulkerson Southeast Missouri State University

1. Civil Law and Liability Chapter 13 Shifting Directions Dr. Andrew Fulkerson Southeast Missouri State University

2. Shifting Directions Dramatic changes in liability since 1960s Monroe v. Pape, Supreme Court held that officer may be sued under § 1983 Monell v. Dept. of Social Services, supervisors and local govt may be liable for "policy"

3. Liability Protection Government officials given qualified immunity from liability for actions

4. Standards for Finding Liability Deliberate indifference applied to most correctional and law enforcement issues

5. Deliberate Indifference Conditions of confinement - Wilson v. Seiter Failure to protect - Farmer v. Brennan Environmental tobacco smoke - Helling v. McKinney ADA cases - Penn. Dept. of Corr. v. Yeskey Administrative liability and failure to train - City of Canton v. Harris Admin hiring practices - Board of County Commissioners of Bryan Co. v. Brown

6. Lethal Force Standards Arrest deadly force - 4th reasonableness test - Tennessee v. Garner Correctional deadly force - shocks conscience - Whitley v. Albers

7. Officer as Plaintiff Texas survey - 12% of civil cases filed by officers/ officer wins 41% of cases Most common complaint is sexual harassment Other complaints for wrongful termination, discipline Employment discrimination re hiring, firing, discipline, etc.

8. DOJ Investigations of Local Agencies Crime Bill of 1994 (42 U.S.C. §§ 14141-14142) Allows DOJ to investigate police misconduct Requires collection of data on police abuse Authorizes DOJ to file suits against local agencies for declaratory or injunctive relief

9. COP and Liability Does expansion of decision-making authority of street cop expose officer to more liability? But if COP programs improve relationship between police and citizens, liability should be reduced.

10. Privatization Privatization of correctional facilities and services States leased inmates to private contractors for labor in 19th and early 20th century. This practice subsided. But in last 20 years states have contracted entire facilities to private companies for management of prison.

11. Liability for Constitutional Torts Contractors are liable for civil rights violations Public function of the service provided is key. (Sarro v. Cornell Corrections, Inc., 2003) Physician contracted on a part-time basis to provide specialized medical services - public function (West v. Atkins, 1988) Employees of firm that contracted to provide all medical services for correctional facility - public function = liability (Bafford v. Baird, 2002; and Hinson v. Edmond, 1999)

12. Liability under Public Function Test Providing services to children at juvenile residential centers (Lemoine v. New Horizons Ranch & Center, 1998) Prisoner transportation (Elliott v. Stafford County, 2001); Operation of entire facilities (Sarro v. Cornell Corrections, Inc., 2003).

13. Contractor Liability Contractors are liable under “public function” test Should contractors have qualified immunity under public function test?

14. Richardson v. McKnight, 521 U.S. 399 (1997)

15. Hope v. Pelzer, 536 U.S. 122 (2002)