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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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