While the common idea of a police-suspect encounter is that the suspect has done something wrong, there are a number of circumstance where it is the officer who will be found to have acted improperly or without appropriate legal authorization. Civil liability, is one of the two forms of legal redress that police officers may face when they fail to perform their assigned duties, act negligently, or abuse their authority (Kaci, 1998). Civil liability, as opposed to criminal liability, refers to the power of an injured party to sued a defendant for compensatory (monetary), equitable, and declaratory relief.
In order for civil liability to arise against an officer, there must be: (1) a legal duty that the officer owes to the victim, (2) the duty is breached by the officer in some manner, and (3) the breach of duty by the officer results in an injury or loss to the victim. Generally, civil liability for police officer is expressed as an intention tort, a negligent tort, or a violation of the Section 1983 of Title 42 of the United States Code (Section 1983).
An intentional tort refers, as the name suggests, to a purposeful act by the officer who either intends the actual result of the act or is fairly certain that the result of the act will occur; and the act actually bring about a wrong. An example of an intentional tort for officer civil liability purposes would be the intentional infliction of emotional distress. This could occur under the circumstances where an officer acts in such as outrageous manner, such as pulling a gun on an unarmed child, that causes the victim severe emotional distress.
A negligent tort refers to an act where the officer has: a duty to act according to a specific standard such as with reasonable care to a suspect, fails to exercise reasonable care, and that failure results in an injury or loss to the suspect. An example of a negligent tort in a civil liability case against an officer would be a showing that police should have had appropriate training in how and when to use a chokehold against a suspect. However, after using a chokehold against a suspect that resulted in their death, it is revealed that the officer did not have the proper training in deploying that specific measure.
Lastly, under Section 1983, a police officer is open to civil liability when they: (1) violate a constitutional or federally protected right such as the Fourth Amendment right to be free from an unreasonable search or seizure by the state, (2) the violation occurs when the officer is “under color of state law” such as when they are on duty, in uniform and displaying their badge, (3) the violation results in the victim suffering some damage. This type of civil liability case is the one most often faced by police officers (Kaufman, 1987). An example of this type of case would be an officer who enters a suspect home without a warrant or exigent circumstances and strip searches them in front of their children.
Despite the possibility of civil liability for an officer; there are a number of defense. Defense refer to arguments that an officer can make that limits or eliminates their liability. For example, in regards to intentional torts, common defenses include, self-defense, defense of others, and necessity. For a negligent tort, commonly used defenses include contributory and comparative negligence where the court will limit liability based on the amount of negligence the victim caused on their own. For violations of the Section 1983, however, defenses are referred to as immunities. Altogether there are three types of immunities, namely absolute, quasi-judicial, and qualified. Absolute immunity refers to complete isolation from civil liability. Absolute liability is only available to police officers in certain specific situations such as for police action’s connected with the trial process (Kaufman, 1987). Quasi-judicial immunity provides isolation from civil liability where the officer is acting under the authority of a judicial authority and not with the police department such as when a court calls on a police or probation officer to prepare a sentencing report (DLJ, 1976). Lastly, qualified immunity provided insolation from liability for those discretionary acts or acts of personal judgement that a court deems integral to the work of a police officer (Schott, 2012). For instance, if the officer could show that entering the apartment and strip searching the suspect, as mentioned above, were reasonable and performed in good faith with in the scope of the law, he might successfully defend the civil liability case.
References
Duke Law Journal (DLJ). (1976). Quasi-judicial immunity: It’s scope and limitations in section 1983 actions. Retrieved from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2567&context=dlj
Kaci, J.H. 1998. Criminal Procedure. Incline Village, NV: Copperhouse Publishing Company.
Kaufman, J. (1987). Section 1983: Absolute immunity for pre-trial police testimony. Retrieved from http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1682&context=ulj
Schott, R.G. (2012). Qualified immunity: How it protects law enforcement officers. Retrieved from https://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers
