Major Crime Assistance Team Seminar, Police Liability & Defenses Under State & Federal Law, February 20, 2014 By Robert H. Hanaford (part 2)
- Liability Of Officers Present
- Supervisor Liability
A Supervisor may be held liable under limited circumstances even though he did not directly participate in the conduct that violated a person's constitutional rights. The most common theories of liability are authorizing or acquiescing in the improper conduct or failing to train and supervise.
In Larez v. City of Los Angeles,84 individual officers, the City and the Chief of Police were found liable for injuries resulting during a search of plaintiff's home. 85 In holding the Police Chief liable, the Court noted:
- A supervisor will rarely be directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury. Yet, this does not prevent a supervisor from being held liable in his individual capacity. Like the officers, Gate's individual liability hinges upon his participation in the deprivation of constitutional rights. But unlike the officers' in-volvement, which ordinarily is direct and personal, his participation may involve the setting in motion of acts which cause others to inflict constitutional injury.
Factors to consider for supervisor liability include whether the supervisor "set in motion a series of acts of others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known, would cause others to inflict constitutional injury." 86 Supervisory liability may also be imposed for the supervisor's "own culpable action or inaction in the training, supervision, or control of his subordinates, or for his acquiescence in the constitutional deprivation." 87 Significant to the court's decision was the Chief appeared to condone, ratify and encourage the behavior. The Chief was also the official policy maker for the City, and evidence showed the investigation of the incident was insufficient and the department's complaint and disciplinary procedure contributed to the excesses. 88
The best way to avoid supervision liability is to have written guidelines on use of force and strictly follow the guidelines. Subordinates should also be properly trained and deviation from department policy ought to be dealt with in a serious and consistent manner.
- Municipal Liability
- Government Policy or Custom
Governmental entities are not liable for the actions of their employees and agents on agency principles. A local governmental entity is only liable for the acts of its employees or agents when they are acting pursuant to a government's policy or custom, or are those persons whose acts may be said to represent official policy. A municipality will not be liable simply because one of its agents acts contrary to the Constitution. The theory is that a governmental entity should only be liable for constitutional violations caused by its own actions. 89
For example, an individual police officer's act of using excessive force will not subject his employer municipality to liability. On the other hand, if an officer was following an unconstitutional policy of the Department to strip search all persons arrested, regardless of the charge, then the municipality would be liable.
- Single Act by Policy Maker May Create Section 1983 Liability.
In Pembaur v. City of Cincinnati 90 a doctor sued the City claiming his Fourth Amendment rights were violated when Deputy Sheriffs, per orders of the County Prosecutor, axed his office door to serve subpoenas on the doctor's employees. 91 The Court of Appeals affirmed dismissal of the case because there was no evidence of a county policy. The plaintiff could only establish this one instance of alleged misconduct. The Supreme Court held that the single act of an official with policy making authority may subject a municipality to liability under Section 1983. The theory behind the Monell decision was that acts of the municipality should be distinguished from acts of its employees. The municipality is only liable for actions that it is responsible for.
The court held "that municipal liability under Section 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Based upon Ohio law, the court concluded that the County Prosecutor could establish county policy in certain instances involving law enforcement procedure. 92 Pembaur stands for the proposition that an existing policy or custom is not necessary to hold a municipality liable. A person with policy making authority may subject a municipality to liability by making a single improper decision.
Clearly the Chief of Police would generally be considered a person having policy making authority. However, the rank and file officers ordinarily do not have authority to make policy. Therefore, a Police Officer would not be considered a policy maker in connection with subjecting a local government to liability.
- Failure to Train
A custom or policy is not established merely by proof of a single unconstitutional activity. In City of Oklahoma v. Tuffle,93 a lawsuit was filed after one of the City's Police Officers shot and killed a suspected armed robber.94 The theory of liability against the City was that it had an existing policy of improperly training officers.
The Court noted that:
- Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional Municipal Policy, which Policy can be attributed to a municipal policymaker. 95
In City of Canton v. Harris,96 the Supreme Court again considered the issue of municipal liability for inadequate training. Plaintiff claimed deprivation of constitutional rights to receive medical attention while in police custody. It was alleged that the City was liable under Section 1983 because of its failure to properly train its police force. The court held that a municipality may, under certain circumstances, be held liable under Section 1983 for failing to train its officers. However, there must be a direct relation between the inadequate training and the constitutional violation and the failure to train must amount to a deliberate indifference. 97 For example, a City's Police Officer may so frequently violate constitutional rights that it is obvious that training is necessary, yet the policy makers may do nothing out of indifference to the problem. The court further noted that it is not sufficient "that a particular officer may be unsatisfactorily trained [since his] shortcomings may have been the result of factors other than a faulty training program."98
The court noted:
- It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the City can reasonably be said to have been deliberately indifferent to the need. 99
In resolving the issue of the City's liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the City, for the officer's shortcomings may have resulted from factors other than a faulty training program.100
- Government Policy or Custom
- State Tort Liability
A tort can best be defined as a private or civil wrong or injury which arose independent of contract. For instance, the tort of negligence is committed by an individual when (1) he owes a legal duty to another (for example, to operate a motor vehicle with reasonable care); (2) he breaches the duty (for example, by driving too fast); and (3) damages occur as a proximate result of the breach of duty (for example, he hits another causing personal injury).
The Governmental Tort Immunity Act 101 significantly limits the liability of both Police Officers and municipalities. Following are some of the Sections most applicable to municipal liability for the conduct of police officers:
(a) 2-102 - Local public entity is not liable for punitive damages.
(b) 2-109 - Local public entity is not liable for an injury resulting from conduct of its employee where the employee is not liable.
(c) 2-202 - Public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.
(d) 2-301 and 302 - Local public entity is required to defend and indemnify employees so long as a claim or action results from conduct of the employee occurring within the scope of his employment.
- Municipal Liability
The Tort Immunity Act provides that a municipality is not liable for injury resulting from conduct of its employee if the employee is not liable. 102 An employee will not be liable if the conduct occurred while in the execution or enforcement of any law, unless the conduct constitutes willful and wanton conduct. 103
It is therefore essential to determine if a police officer is involved in the enforcement or execution of the law at the time of the conduct which is the subject of the lawsuit. For instance, if the police officer is responding to an accident scene, he would be involved in enforcement or execution of the law.
It would, therefore, be necessary for his conduct to constitute willful and wanton conduct before he is liable and before the municipality is liable.
Willful and wanton conduct does not require that the specific injury be intended. Rather, willful and wanton conduct means "a course of conduct which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. 104
On the other hand, if it is determined that a police officer was not involved in the enforcement or execution of a law, then both the police officer and the municipal employer may be liable because of the officer's negligence.
- Police Officer Liability
- Qualified Immunity
The Tort Immunity Act provides certain defenses and immunities for police officers and their governmental employers. Section 2-202 provides that "a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." Section 2-202 has two requirements: (1), the officer must have been in the execution or enforcement of the law; and (2), his act or omission must not constitute willful and wanton conduct. If both elements are met, then the officer will have qualified immunity against liability for negligence.
In Fitzpatrick v. City of Chicago 105 the plaintiff sued after he was injured when a car collided with a squad car parked on the Stevenson Expressway while the officer investigated an accident. The impact caused the squad car to hit plaintiff who was standing between the squad car and another car. The issue on appeal was whether the officer was executing or enforcing the law at the time of his alleged negligence. The court noted that an officer is not executing or enforcing the law simply because he is on duty. Rather, a determination must be made based upon the facts of each case. 106
- Thus, where the evidence establishes that at the time of his alleged negligence a public employee was engaged in a course of conduct designed to carry out or put into effect any law, an affirmative defense based upon Section 2-202 and 2-109 of the Tort Immunity Act ... should be available to the governmental employee and his employer. 107
The court concluded that the officer was enforcing or executing the law since he was assigned to the traffic division and his duties included enforcing the traffic laws, which duties he was in the process of performing when the accident occurred. 108
In Thompson v. City of Chicago, 109 the plaintiff sought recovery for injuries sustained when she was hit by a police car that was backing away from an unruly crowd at a concert. The court rejected plaintiff's argument that Section 2-202 immunity did not apply because the officers ceased enforcing the law when they retreated from the crowd. The court noted,
- Enforcing the law is rarely a single, discreet act, but is instead a course of conduct.... The evidence was uncontradicted that the reversal of the car was merely a tactical retreat, part of a course of conduct continuously directed toward preventing or remedying a breach of the peace. 110
In Aikens v. Morris, 111 the plaintiff was hit by a police car that was transporting a prisoner to a lock up. The court refused to expand Section 2-202 immunity and found that the officer was not involved in the execution or enforcement of the law. 112 The court indicated that to find the officer was enforcing the law in this case would be an overly broad interpretation of the phrase "execution or enforcement." An officer is not engaged in the execution or enforcement of the law simply because he is on duty within the scope of his employment. 113
Applying Fitzpatrick, Thompson and Aiken would lead to the general proposition that an officer will have the protection of Section 2-202 immunity except when engaged in routine activities. As usual, each case must be decided on its own facts. However, an officer would clearly be enforcing the law while responding to a call, making a traffic stop or assisting a disabled motorist.
- High Speed Police Pursuits
The act of pursuing a suspect would constitute enforcement of the law. Accordingly, the qualified immunity of Section 2-202 would apply, and an officer's conduct would have to constitute willful and wanton conduct before he would be liable.
In Laco v. City of Chicago 114 it was not willful and wanton neglgence where officers pursuing a traffic suspect hit another motorist. The court found significant that the officers had activated the squad car's siren and emergency lights, varied their speed as needed, the streets were dry, traffic was light and the streets were well illuminated.
In Bosen v. City of Collinsville, 115 a police officer was only guilty of simple negligence and not willful and wanton conduct where he was responding to a burglar alarm and where he had his emergency lights and siren activated.
The factors considered important in police chase cases include whether the suspect presents a danger to the public; the road conditions; is there a possibility of danger to other motorists and pedestrians; and is a chase necessary to apprehend the suspect. Every police department has a policy concerning hot pursuit chases that should be consulted. In general, police chases are not favored because of the high percentage of chases that result in injury and property damage.
- Failure to Arrest or Enforce Laws
Police officers and municipalities have immunity for failing to enforce the law or failing to provide police protection.
Section 4-102 of the Tort Immunity Act provides that:
- Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police pro- tection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee.
Section 4-107 must be read in conjunction with Section 4-107 which states:
- Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody.
The theory behind Sections 4-102 and 4-107 are that the duty of the police to prevent crimes and provide for public safety is owed to the public at large and not to specific individuals. Furthermore, since the provision does not contain an exception for willful and wanton misconduct, the legislature intended to immunize defendants from both negligence and willful and wanton misconduct.116 Village and police were immune from claims alleging failure to report sexual assault arrest to school officials even if conduct was willful and wanton.117
EXCEPTION - Special Duty
A narrow exception has been created to the immunity granted by Section 4-102 when a special duty arises. A special duty is owed if the following four requirements exist: "(1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of the employees or agents of the municipality.
In Poliny v. Soto, 118 there was no special duty that arose where plaintiff requested police officers to accompany him to the scene of a fight and where plaintiff was subsequently beaten by the original combatant's friend after police refused to assist plaintiff back to the police station. The court found it significant that it was not the police that requested plaintiff to assist them in identifying the suspects.
In Veach v. Cross, 119 there was no liability where plaintiff was injured when a car she was a passenger in crashed while being chased by police. The driver of the car had an outstanding warrant and was attempting to elude police.
In Rush v. City of Chicago, 120 plaintiff, suspected of rape, was shot by the mother of the rape victim while he was in custody at the police station. Plaintiff claimed a special duty had arisen. The court disagreed, holding there was no evidence that the police were aware of the impending danger to plaintiff.
In Brook v. Lundeen,121 police were liable where they initiated control over the decedent by directing him to park his car on the shoulder of the road by a road block. The police failed to warn him of the purpose of the road block and decedent was killed when a suspect, for whom the road block was set, crashed into his car.
In Gardner v. Chicago Ridge,122 police were liable where they took a witness back to the scene of a crime to identify a suspect and the witness was injured. The police had exercised direct and immediate control over the witness.
The courts have also been reluctant to find liability for failure to arrest a suspect. In Hernandez v. Village of Cicero,123 decedent was stopped and ticketed twice and allowed to continue on his way. Decedent thereafter killed himself in a one-car accident. A toxicology report revealed decedent was drunk. Decedent's estate sued claiming the police breached a duty of care by letting decedent proceed while drunk. The court held no special duty was owed to decedent since he was not under the direct and immediate control of the police.
In Fessler v. R.E.J., Inc., 124 the court found no duty was owed to plaintiff who was injured after police failed to detain a drunk driver who ultimately crashed into plaintiff. The court strictly adhered to the direct control requirement in finding no special duty arose.
- Domestic Violence Act Illinois
Failure to protect a person for whom an order of protection has been entered under the Domestic Violence Act may be a cause for civil liability.125 Section 304(a) of the Act states, in pertinent part, as follows:
Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a family or household member, the officer shall immediately use all reasonable means to prevent further abuse, neglect, or exploitation, including:
(1) Arresting the abusing, neglecting and exploiting party, where appropriate. 750 ILCS 60/304(a)
In addition, Abuse means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.
Section 305 of the Act states as follows:
Any act of omission or commission by any law enforcement officer acting in good faith in rendering emergency assistance or otherwise enforcing this Act shall not impose civil liability upon the law enforcement officer or his or her supervisor or employer, unless the act is a result of willful or wanton misconduct.
In Fenton v. City of Chicago, 126 there was liability under the Act where the officers twice responded to the 911 calls by Fenton related to a violent argument. They removed the assailant, Rovale, from the premises and told him wait outside for his girlfriend to give him a ride to another location. Minutes after the officers left, Rovale returned home where he beat and stabbed Fenton. A jury returned a verdict in excess of $2 million and answered special interrogatories finding the involved officers acted wilfully and wantonly in their official activities.
In affirming the verdict the court noted that there was ample evidence that the officers had probable cause to arrest Royale for disturbing the peace or harassment under the Act. Instead, they simply removed Royale from the premises and more or less hoped he would not return, after having been twice called to the scene.127
In Lacey v. Village of Palatine,128 the court found that there was not liability under the Act. Mary Lacy and her mother were murdered by Lacey's former boyfriend, Steven Zirko, on December 13, 2004. Lacey began living with Zirko in 1995. The relationship turned abusive and Lacey obtained an order of protection on December 9, 2003 that was effective to December 9, 2005. In October 2004 it was brought to the attention of police by Zirko's Chiropractor that Zirko was planning to kill Lacey. The information was relayed to Glenview police where Lacy lived.129 On October 15, 2004 Glenview requested that Lacy come to the station because in immediate danger. She was told that Zirko would not be arrested at that time, but that she would be provided 24 hour protection. On October 21, 2004 Glenview detectives interviewed Zirko with his attorney. His attorney told the detectives that Zirko had no intention of harming Lacey. On October 22, 2004 the investigation was closed and Zirko was never arrested or detained. From October 22 through December 13, 2004 plaintiff claims that Lacey repeatedly called Palatine and Glenview police departments requesting that Zirko be arrested or she be provided with protection.
The Supreme Court found there was no liability under the Act and the lawsuit brought by Lacey's Estate was properly dismissed by the trial court. The court noted initially that "for the limited immunity provided in section 305130 to apply, the officer's act of omission or commission must occur while the officer is rendering emergency assistance or otherwise enforcing the Act." 131 In the present case there was no claim that the police were rendering emergency assistance to Lacey.
The next issue was whether defendants were "otherwise enforcing" the Act between October and December 2004. The definition of "otherwise enforcing" is not stated in the Act. However, "enforcing the law" has been defined in the context of the Tort Immunity Act 132 as requiring a case by case consideration. "Enforcement of the law is' rarely a single discrete act, but is instead a course of conduct.' " 133 The Court concluded that the defendant officers were not enforcing the Act primarily based on the period of time that encompassed the events from when the police closed the murder plot investigation on October 22 through December 13, 2004 when Lacey was murdered.
Otherwise, the officers would have to be considered as enforcing the Act over the course of 2 months. This "would create a situation where once officers were aware of the potential for violence, they would remain liable for the prevention of that violence for an indefinite period of time." 134 The intent of the Act was not to create a "generalized, open-ended duty to protect victims of domestic violence." 135
By comparison to Fenton v. City of Chicago, where liability was found, the facts of Lacey stemmed from a lengthy domestic dispute. In Fenton, the facts were dealt "with a timeline that is articulated in minutes, not days, weeks or months." 136
- Use of Force
In Illinois, the extent to which a police officer may use force is provided for by Statute, which states, in part:
He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend
himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person, or when
he reasonably believes both that: (1) Such force is ecessary to prevent the arrest from being defeated by resistance or escape; and (2) the person to be arrested has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.137
The use of deadly force is therefore only proper when necessary to prevent the arrest from being defeated by resistance or escape and when either of two additional dangerous situations exits: (1) the person has committed or attempted a forcible felony involving the infliction or threatened infliction of great bodily harm; or (2) regardless of the offense involved, the offender has indicated in some manner that he will cause great bodily harm if not immediately apprehended. For example, the person is armed with a deadly weapon.
In Simmons v. City of Chicago, 138 a lawsuit was brought against the City and a police officer following the shooting of a 16 year old boy. The Supreme Court affirmed a jury verdict in favor of the City and officer. The court found that the officer acted reasonably since he was told the suspect threatened to shoot his robbery victim. The suspect indicated through his conduct that he had a gun and the officer observed the suspect using force in a second robbery. 139
The above factors "demonstrate strongly that [the officer] was acting under a reasonable belief and apprehension that decedent might well use deadly force against another victim or the officer himself." 140
When using force, the officer should only use that degree of force that is reasonably necessary to accomplish the arrest. However, the officer should not become so overly concerned with legal principles that he is afraid to act or acts in an indecisive manner. Indecision may result in injury to the officer. The officer's conduct will be judged based upon what a reasonable officer would have done under the circumstances, not what should have been done based upon hindsight.
- Qualified Immunity
Generally, liability based on the failure to intervene occurs in excessive force cases where other police officers stand by while another officer administers excessive force or violates a person's constitutional rights in some other manner. The officer can be liable if he had reason to know that excessive force was being used and if he had a reasonable opportunity to prevent the harm from occurring.73
Yang v. Hardin,74 presents a rather bizarre example. Police officers were called to the scene of a store that had been burglarized. One of the officers took merchandise and when confronted by the store owner, the officer shoved him and attempted to flee the scene. The store owner then attempted to prevent the officer from leaving by hanging onto the squad car's door, but the police officer drove away quickly and recklessly, zig-zagging, accelerating and decelerating. Ultimately, when the car stopped, the officer punched the store owner in the face. The police officer's partner, throughout the criminal endeavor, sat silently in the passenger seat of the squad car doing nothing.75 The Seventh Circuit held that the partner could have called for backup, called for help, or cautioned the other officer to stop, and that his failure to take any preventative measure rendered him liable for his partner's use of excessive force.76
Byrd v. Brishke is the primary authority in the 7th Circuit on the duty of an officer to intervene to prevent excessive force. In Brishke, this court held that "one who is given a badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge."
In Abdullahi v. City of Madison,77 Mohamed was a Somali immigrant suffering from severe Post Traumatic Stress Disorder (PTSD) from various traumatic events he had as a child in Somalia. He was crossing University Avenue in Madison, Wisconsin and he appeared disoriented to a nurse on the way to work. She stopped to render assistance and for some reason Mohamed attacked her. Numerous police officers eventually arrived and struggled with Mohamed ultimately getting face down on the ground and handcuffed. During the arrest, officer Brooks had his knee on Mohamed's back in an attempt to prevent his movement. Several minutes after Mohamed was handcuffed it was realized that he was not breathing. He was pronounced dead, the cause being multiple crushing injuries to his neck and back, including a collapsed lung.78
A lawsuit for excessive use of force under the Fourth Amendment was brought against the City of Madison and all officers that were on the scene. The district court dismissed the lawsuit finding there was no evidence that Brooks acted unreasonably or caused the fatal injuries to Mohamed's neck and chest. The court concluded that "the mere fact of an injury does not suffice to create a question of fact regarding excessive force." 79
The Seventh Circuit reversed finding that there was a question of fact regarding whether the injuries were caused during the arrest, whether excessive force was used by Brooks and whether the other officers present were liable for allowing the excessive force by Brooks.80
The Court noted that under prevailing Supreme Court authority all excessive force claims "in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth amendment and its 'reasonableness standard." 81 In considering the failure to intervene claim against the other officers, the Court noted:
"Whether an officer has sufficient time to intervene or was capable of preventing the harm caused by the other officer is generally an issue for the trier of fact unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.82
The court conceded that that was "little direct evidence that [the other officers] should have recognized that illegal conduct was occurring, or that they had a reasonable opportunity to intervene." However, there was evidence that the others were only a matter of feet away while the conduct alleged occurred and there was expert testimony that Brook's efforts to restrain Mohamed violated police procedure. The court concluded that in light of the severity of Mohamed's injuries a question of fact remained as to the intervention and excess force claims.83