2-6 Civil Liability & Use of Force

1. 2-6 Civil Liability & Use of Force

2. United States Marshal Rooster Cogburn

3. ROADMAP • TORT LAW • LIABILITY FROM VEHICLE OPERATIONS • SOVEREIGN IMMUNITY • LIABILITY FROM HIGH-SPEED PURSUITS • USE OF FORCE ISSUES • CONSEQUENCES

4. FOR WHAT REASONS ARE OFFICERS, AND THEIR EMPLOYERS, BEING SUED?

5. SPECIFIC INSTANCES WHICH COULD RESULT IN CIVIL LIABILITY TO AN OFFICER OR THE DEPARTMENT OR THE COMMUNITY • NEGLIGENT HIRING, TRAINING, RETENTION • FALSE ARREST • IMPROPER SEARCH AND SEIZURE • INJURY TO INNOCENT BYSTANDERS • FAILURE TO PREVENT A CRIMINAL ACT FROM OCCURING • FAILURE TO PROTECT CONFINED INMATES • TRAFFIC CHASES/PURSUITS • EXCESSIVE USE OF FORCE • BIAS-BASED ACTIONS

6. SOVEREIGN IMMUNITY A type of immunity that in common law jurisdictions traces its origins from early English law (hence the saying, the king can do no wrong) Generally speaking, it is the doctrine that the government cannot commit a legal wrong and is immune from civil suit or criminal prosecution SOURCE: Wikipedia, the free encyclopedia

7. ORC 2744.03(A)(6) … the employee is immune from liability unless one of the following applies:  (a) … acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;  (b) … acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;  (c) Civil liability is expressly imposed upon the employee by a section of the Revised Code

8. Elkins v. Summit County, 2010 6th Circuit • On June 6, 1998, Johnson was raped and murdered in her home. Her six-year-old granddaughter was also assaulted and raped. Based on her statement that the rapist looked like her uncle, Elkins, the Barberton police arrested Elkins. A friend of Judith's testified that she had expressed fear of Elkins and had called her son-in-law names. • Elkins was arrested.

9. Elkins v. Summit County, 2010 6th Circuit • On January 5, 1999, while the Elkins investigation was ongoing, Mann was arrested by the Barberton police for two “strong-arm” robberies. During the course of the arrest, Mann, who was mad and drunk, asked officer Antenucci, “Why don't you charge me with the Judy Johnson murder?” • The officer forwarded a memo of the statement to detectives. It was not disclosed.

10. Elkins v. Summit County, 2010 6th Circuit • At trial, Brooke identified Elkins as the perpetrator. Elkins wife testified that Elkins had been at home with her, 40 miles away, but in separate beds. She was seen as covering for her husband. • Pubic hair and head hairs from Johnson's anus and Brooke's nightgown and other DNA was not tested since the police had a witness. • Elkins was convicted! He received life without parole. No shock, he appealed.

12. Elkins v. Summit County, 2010 6th Circuit • Was it wrong for the detectives to withhold the statement made by Mann from the defense? Were their actions malicious? • What if they could prove it had no merit? • In 2002, Brooke recanted her testimony. Should the memo matter now? • DNA finally tested, not Elkins – no release. Should the memo matter now? • Were the LEOs malicious?

13. Elkins v. Summit County, 2010 6th Circuit • An officer must disclose to the prosecutor evidence whose materially exculpatory value should have been "apparent" to him at the time of his investigation. Elkins had a constitutional right to have the favorable evidence disclosed to the prosecution and the court.

14. Elkins v. Summit County, 2010 6th Circuit • Mann had been arrested and convicted of molesting his three young daughters • He went to prison with Elkins • Elkins did the job for the cops! • Attorney General’s help

15. ? WHAT CAN THE AGENCY DO TO MINIMIZE CIVIL LIABILITY?

16. METHODS FOR AVOIDING OR MINIMIZING CIVIL LIABILITY • PROFESSIONALISM • COMMON SENSE • KNOWLEDGE OF AND ADHERENCE TO THE LAW • QUALITY RECRUITMENT • QUALITY BASIC TRAINING AND CONTINUED TRAINING • PERFORMANCE EVALUATIONS • OPERATIONAL POLICIES AND PROCEDURES • LIABILITY INSURANCE

18. State v. Baughman, 1/18/201112th Appellate District • Officer Martin of the Springboro PD received a 911 dispatch regarding a possibly intoxicated driver heading toward Springboro. A man who identified himself as "John Simpson" called 911 and reported seeing a small, red car driving erratically in the vicinity of State Route 741.

19. State v. Baughman, 2011 12th Appellate District • The informant provided the license plate number of the vehicle and suggested that the driver may be diabetic or intoxicated. • Officer Martin then initiated a traffic stop without having observed any traffic violations. The officer stopped the vehicle solely on the basis of "John Simpson's" tip.

20. State v. Baughman, 2011 12th Appellate District • Shawna was placed under arrest • Unbeknownst to Officer Martin at the time of the arrest, the tipster who identified himself as "John Simpson" was actually Shawna's husband, Frank Baughman. • He did not want Shawna to know he was the tipster due to their impending divorce & custody issues.

21. State v. Baughman, 2011 • When Shawna retrieved the children, Frank claimed he saw her "stumble a little bit" as she opened her car door. He also indicated that he "thought he smelled something" about Shawna's person. At the suppression, he admitted that he phoned 911 partly because he was angry following the custody exchange. He didnot actually observe her driving erratically or crossing the double line as he told the 911 dispatcher. • Is the stop & evidence admissable???

22. State v. Baughman, 2011 • The propriety of applying the exclusionary rule turns on the culpability of the police and the potential for exclusion to deter wrongful police conduct. • The exclusionary rule was not designed to exclude evidence of misconduct by an actor outside of law enforcement.

24. TORT A PRIVATE OR CIVIL WRONG OR INJURY A DUTY OWED ACCORDING TO A STANDARD OF CARE, WITH FAILURE TO MEET STANDARD THEREBY CAUSING A LOSS, DAMAGE OR INJURY TO ANOTHER

25. CRIME AN OFFENSE COMMITTED AGAINST THE STATE

27. TORT LAW THERE ARE THREE CATEGORIES OF TORT LAW: NEGLIGENT INTENTIONAL CONSTITUTIONAL

28. TORT LAW NEGLIGENT Failure to conduct affairs or perform certain acts in such a manner that others are subjected to unreasonable risk of harm It is a lack of due care in using police equipment or performing police duties (i.e. Improper high speed pursuits, use of force, use of roadblocks, firearms, etc.)

29. TORT LAW • NEGLIGENT • A plaintiff must prove these elements: • Existence of a duty • Breach of that duty • Proximate (foreseeable) cause leading to • Loss or damage

30. TORT LAW INTENTIONAL Voluntarily performing an act which, to a substantial certainty, will injure another Includes such actions as assault, false arrest, malicious prosecution, defamation, invasion of privacy, intentional infliction of emotional distress Must show actual harm

32. TORT LAW CONSTITUTIONAL A failure to recognize and uphold the rights, privileges, and immunities provided by the U.S. Constitution, thereby depriving an individual of his/her rights, privileges, and/or immunities Examples: 42 U.S.C. 1981 - racial discrimination 42 U.S.C. 1983 - while acting under color of law, deprive a person of a constitutionally protected right

33. TORT LAW • CONSTITUTIONAL • A plaintiff must prove these elements: • Public officer or official • Acting under color of law leading to • Violation of a constitutional right • Proximate cause of harm/damage

34. Houston Police 2009

35. TORT REMEDY THERE ARE TWO CATEGORIES OF TORT REMEDY: COMPENSATORY PUNITIVE

36. TORT REMEDY THERE ARE TWO CATEGORIES OF TORT REMEDY: COMPENSATORY GENERAL pain and suffering SPECIFIC out-of-pocket expenses ATTORNEY FEES available for cases involving the violation of civil rights (42 U.S.C. 1988)

37. TORT REMEDY THERE ARE TWO CATEGORIES OF TORT REMEDY: PUNITIVE (or Exemplary) Punishment; Paid from the defendant’s own pocket, not from insurance. Available for intentional torts.

38. ELEMENTS OF A PERSONAL INJURY TORT 1. Did the officer owe a duty to the person injured? Failure to arrest Public duty vs. Special duty

39. ELEMENTS OF A PERSONAL INJURY TORT 2. Did the officer violate the standard of care? The actions are those of a reasonable and prudent police officer The act must not be willful or wanton or done with a reckless disregard for the safety of others

40. ELEMENTS OF A PERSONAL INJURY TORT 3. Did the officer’s violation of the standard of care cause the plaintiff’s injury? Proximate, causal relationship between the officer’s actions and the injury sustained. It is a causal relation between two or more events. “Proximate cause” is defined as “that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred”

42. Move Bombing

43. ELEMENTS OF A PERSONAL INJURY TORT Did the officer owe a duty to the person injured? U.S. v. Lanham, 2010

44. U.S. v. Lanham, 2010 6th Circuit • Lanham and Freeman worked as jailers in Grant County, KY. Along with their supervisor they decided to “scare” an individual, who had been arrested for a traffic violation, by placing him in a general population jail cell. • Lanham and his supervisor mocked the victim about his slight appearance, and he was present

45. U.S. v. Lanham, 2010 6th Circuit when his supervisor said that the victim would make a "good girlfriend" for the other inmates. • When the supervisor stated that they needed to teach the victim a lesson, Lanham quickly volunteered that he knew a prisoner in Cell 101.

46. U.S. v. Lanham, 2010 6th Circuit • Lanham talked to Inmate Wright, within earshot of other inmates, and explained that the guards would be bringing a new prisoner down and that they wanted the prisoners to "fuck with" him. • The inmates cheered at this news when Lanham was present, and he knew of that particular cell-block’s reputation for violence.

47. U.S. v. Lanham, 2010 6th Circuit • Lanham stated that the victim should have been in a detox cell, not in the general population, and he admitted that he had asked Inmate Wright to teach the victim a lesson.Deputy Freeman also failed to protect or assist the victim after learning of the plan. • Should the deputies be personally liable for any harm???

48. U.S. v. Lanham, 2010 6th Circuit • The victim was beaten and sexually assaulted by other inmates. Are the deputies liable??? • The court held that there was sufficient evidence to support the defendant’s convictions for committing civil rights abuses in violation of 18 U.S.C. §§ 241 and 242. Arrested & liable!!!

49. ELEMENTS OF A PERSONAL INJURY TORT Did the officer owe a duty to the person injured? Sawicki v. Village of Ottawa Hills (1988)

50. Terrace View Apartments 300 yards