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Police Pursuits and Civil Liability - The
FBI Law Enforcement Bulletin   
"As
many as 40 percent of all motor and
some of these result in nearly 300 deaths
each year of police officers, offenders, or
innocent third party individuals. [2]
Because many police pursuits result in
accidents and injuries, agencies and
officers become subjects of civil lawsuits.
Initiated in state or federal courts, these
lawsuits have resulted cumulatively in
case law that directs law enforcement
agencies to develop pursuit policies. The
U.S. Supreme Court recently issued a
ruling that has changed the threshold of
negligence before an agency or officer
can be held liable, which will impact police
agencies across the United States. [3]..."
Civil Liability for Government
Wrongdoing -
 "Suing the government
is the second most popular indoor sport
in America, and police are often the
targets of lawsuits, with over 30,000 civil
actions filed against them every year,
between 4-8% of them resulting in an
unfavorable verdict.  With lawsuits
against large police departments, the
average jury award is $2 million. This
isn't counting the hundreds of cases
settled thru out-of-court settlements,
which, if added up, would probably run in
the neighborhood of hundreds of millions
of dollars. Further, it may take five years
or more to settle a police liability case."
I was a police officer for 32 years, and I
wasn't tucked away in some cushy job
protected from the real world.  Even
though I was constantly exposed to the
dangers of police civil liability, I was never
sued.  In the beginning when I was an
inexperienced rookie as you'll be, I was
lucky to be working with competent police
officers under competent supervision.  As
time went on, I learned to assert myself
when I knew or suspected that
something was being done, or about to
be done, incorrectly.  

Of course...when I began my police
career in 1971, the litigious environment
was nothing as compared to today.  
When you hear a lawyer make the
statement, "We're a nation of laws,"
that's no understatement.  When it
comes to liability, there are new laws
being created all the time, and there are
countless lawyers searching for deep
pockets.  Governments have the deepest
pockets around, and governments are
soft targets for litigation that involves
alleged police misconduct with most
lawsuits concluding in out of court
financial settlements.  

What about immunity?  It's true that, as
a police officer, you'll have the protection
of qualified immunity.  However, if you act
outside the scope of that immunity, you
could find yourself in a very tight spot.  
Most police departments will take the
financial hit for you as long as your
conduct is not criminal, grossly negligent,
or clearly unreasonable.  When you stop
to think about it...this is not a difficult
standard to meet.  
The qualified immunity test requires a
two-part analysis: "(1) Was the law
governing the official's conduct
clearly established? (2) Under that
law, could a reasonable officer have
believed the conduct was lawful?"
Act-Up!, 988 F.2d at 871; see also
Tribble v. Gardner, 860 F.2d 321, 324
(9th Cir. 1988), cert. denied, 490
U.S. 1075 (1989).
Your best protection against civil liability
will always be reasonableness.  You'll
learn that, in police work, things can
change rapidly.  You might make a
reasonable response to a perceived
situation only to have your original
perception debunked by changing
circumstances.  As long as you maintain
continuity of reasonableness, even under
changing circumstances, you'll never go
wrong.

I'm going to give you an example where
you could find yourself named in a civil
rights violation through no fault of your
own.  In this example, you could,
theoretically, have prevented this entire
fiasco.  Realistically, however, your
position as a rookie police officer would
probably preclude you from changing this
scenario:
You're working the 4x12 shift when your
dispatcher directs you, and another
uniformed officer, to meet a supervisor at
a particular location.  You know from the
call number that you're meeting the
supervisor of your district's drug
enforcement squad.

You arrive at the location which is a
parking lot being used as a staging area
prior to the execution of a search and
seizure warrant.  You have no way of
knowing this, but you're going to have a
really lousy night.  Aside from you being
new and inexperienced, the drug unit's
sergeant is brand new, and it's his first
night supervising the squad.  The officer
who wrote the search and seizure
warrant is on leave.  The warrant is being
executed at this time, because another
officer in the drug unit received
information from an informant that a
large amount of cocaine had been
delivered to the house in question.

As the squad prepares to leave the
parking lot, the sergeant briefs you and
the second uniform officer.  He assigns
the other officer to cover the rear of the
house with a plainclothes officer while
you'll accompany the raiding party
through the front door.  He explains that
the squad is executing a
no-knock warrant, so you'll have to be
prepared to move fast once you arrive in
front of the house.

This is your first search and seizure
warrant, so you're obviously
apprehensive as you drive off the lot
immediately behind the sergeant's
unmarked car.  You're the third car in line
with the lead car occupied by a
plainclothes officer and the uniformed
officer who will cover the rear of the
house.  The fourth unmarked car is
behind you filled with members of the
drug unit.  As you're about to enter the
target block the car in front of you
speeds up.  You're already under
pressure, so it doesn't help when the car
behind you speeds around you, before
you have a chance to accelerate.  
Seconds later you're screeching to a stop
behind the two unmarked cars.  The
sergeant wasn't kidding when he told you
to move fast.  You're barely out of your
car as you see the plainclothes guys
almost to the front door.  You make it to
the tail end of the group just as the ram
smashes into the front door.  At this
point you're just along for the ride as
you follow a bunch of screaming, gun
wielding cops single file through the front
door.

Amidst the officers continuously
shouting, "POLICE...POLICE," you hear a
woman screaming at the top of her
lungs!  The screams of panic multiply,
and, by the time you're inside the front
room of the house, you count four
women...one adult, two teenage girls,
and one elderly woman.  The adult and
the two girls are in constant scream
mode as the sergeant grabs your arm.  
He tells you to secure the front room and
occupants as the raid team continues to
fan out throughout the house.  
Fortunately, as the room empties, the
screaming women focus in on you, and
the screaming turns to sobbing.  The
sight of your uniform has created a
calming effect; however, the adult
woman's sobbing soon turns to anger as
her panic subsides.  You do your best to
answer her questions while she protests
that a terrible mistake has been made.

Shortly into the event, you glance into
the kitchen where you see the sergeant
and another officer intently examining the
contents of the search warrant.  The
sergeant's body language begins to make
you suspect that something is amiss.  
You know what I'm talking about...hands
through the hair, staring at the ceiling,
etc.  Moments later, the raid team is filing
out the front door, and the sergeant
directs you to follow while the sergeant
stays behind.
Okay...you've probably surmised that the
wrong house was raided.  The main
problem rested with the east/west
direction designation in front of the
address.  While the address was correct,
the face of the warrant indicated east
instead of west
(example: E. Robinson
Street instead of W. Robinson Street)
.  
Within the probable cause section of the
warrant the address was identified three
ways...E and W or without any direction
designation.  physical description of the
dwelling was brief and inadequate.  While
the outside physical description to the
house raided was similar to that
described in the warrant, there were
noticeable differences.

In this scenario, the sergeant did the
right thing...finally.  He stayed behind, fell
on his sword, and he provided the
occupants of the dwelling with all the
information needed to speed along the
impending lawsuit.  While there will
certainly be a lawsuit resulting in a very
generous financial settlement, the
sergeant limited further damage by
immediately ceasing the raid as soon as
he was aware of the mistake.  While you'll
be named in this lawsuit, your
involvement is minimal, and you'll be able
to put it into the positive aspect of a
great learning experience.

Now...you ask, "What could I have done
to prevent such a mistake from
occurring?"  Answer:  You could have
read the warrant.  Your fresh eyes would
have quickly picked up the errors
regarding the address.  Your familiarity
with the area would have made you say,
"Hey, the way this reads, it could be one
of two locations."  Had you ask to
examine this warrant, the sergeant might
have said, "Sure, officer," as he
graciously handed you the warrant.  On
the other hand, the sergeant might have
said, "We don't have time for that.  Just
do as you're told."  Had you received the
latter response, you would have
complied.  But...consider that you'd
previously been part of a similar botched
raid.  Do you think you'd settle for
anything less than your review of that
warrant?

It's bad enough if you get sued for
something resulting from your own
actions; however, finding yourself being
sued due to the mistakes of others is a
real bummer.  Anytime you're going to be
intimately involved in any enforcement
activity instituted by others, it's your
right and obligation to know what's going
on.  Remember the second uniformed
officer in the scenario?  Since your
involvement could be termed as minimal,
his involvement could be considered as
even less.  However, let's say that one of
the girls had been in the kitchen cutting a
loaf of bread.  When the front door came
crashing in, and the other women began
screaming, she might have hysterically
fled through the back door still clutching
the bread knife with its menacingly long
blade.  What if she had ignored, or
simply not comprehended, the other
officer's command(s) to stop and drop
the knife?

I chose the search warrant and raid
scenario, because I can't think of too
many things worse for an innocent
person(s) to experience at the hands of
police officers.  Imagine yourself sitting in
your living room with your family when
your front door literally explodes.  Worse
yet, since you're a police officer, you may
be armed.  You may have just arrived
home, or you're preparing to leave, and
you're wearing your holstered off-duty
revolver or pistol.  When that door
explodes, you'll instinctively go for your
weapon.  While you may quickly identify
the intruders as police officers, they'll
only see a suspect pointing a gun at
them.

As inherently dangerous as the execution
of a search warrant in the context of a
raid can be, the bad guys generally
expect and accept the raids as an
occupational hazard.  With the exception
of the odd guy locked in the bathroom
flushing drugs, the rest of the occupants
usually accept their fate.  I'm not
minimizing the danger of raiding a real
drug house.  I'm only saying that the bad
guys expect a violent entry...innocent
people don't.  When the bad guys react
with violence, it's criminal.  When
innocent people react with violence, it's
just simply tragic.

Ah...you say, "Wait just a minute.  A
judge had to review and sign the search
warrant in your scenario, so how would
such a flawed warrant get by a judge?"  
Trust me, it happens.  While some
judges carefully review everything they
sign, others do not.  There's this thing
called
judicial immunity.  While nothing is
ever absolute, judicial immunity is the
closest thing to absolute that you'll ever
see.
Police Civil
Liability
"When it comes to liability, there are
new laws being created all the time,
and there are countless lawyers
searching for deep pockets."
~ Barry M. Baker
As a police officer, you're going to
experience some dangerous situations.
While some of those experiences will be
stressful, they'll be over pretty quickly.  If
you act incorrectly, or stupidly, whether
or not you're under stress, the stress
you'll experience from being sued will last
for many months or even years.  Any
police officer can be sued for any number
of things, and you could find yourself
being named in a lawsuit just for being at
the wrong place at the wrong time.

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