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Aggressive Policing, Civil Liability and Damages

Aggressive Policing, Civil Liability and Damages -...

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Unformatted text preview: Aggressive Policing, Civil Liability and Damages Liability CRJU E491P, Police Liability Spring 2011, Mr. Smith The Problem The Police have significant amounts of discretion. Many police activities occur outside the sight of Many any formal control structure or occur in one-onany one encounters. Internal control measures to address and control Internal police misconduct have come under fire as being ineffective. being Internal Control Measures Internal control measures have included Internal policies, misconduct regulations and review boards. boards. Inability of police administrators to control officer Inability behavior, as well as the public distrust of police administration, has fueled the effort to find external control measures for police misconduct. external External Control Measures External The principle means of external control has The become the civil tort action. become The numbers of civil actions against the police The have increased steadily since 1978 (Monell v. have Monell Department of Social Services), with a surge Department ), beginning in 1989 (City of Canton v. Harris). beginning The increase in civil suits has affected the ability The of departments to deliver service and has posed a significant financial burden on municipalities, which has a “trickle down” effect on police agencies and their officers. agencies Lawsuits: Pros and Cons Lawsuits: Pros: The threat of civil damages against the police provide The a necessary check on “unfettered” police discretion, deter aberrant behavior and impose responsibility on the police. the Cons: The threat of civil damages against the police have The the consequence of discouraging effective police service, due to the fear of “being sued,” “after the fact” finger-pointing and discouragement of “good faith” behaviors. behaviors. Extent of Police Civil Liability Extent No accurate numbers exist, but the numbers of No civil suits against the police seem to have increased dramatically since the late 1970s, beginning with the Monell decision. decision. The number of suits does not accurately reflect The the number of claims against the police or the amounts ultimately paid for police-caused injury. amounts Many claims do not reach suit stage, others are Many settled informally and still others involve sealed judgments or settlements. judgments Damages Damages Damage awards in both standard tort and section Damage 1983 claims against the police have risen dramatically over the years. dramatically From 1989-1999, nationally, the average plaintiff’s award From was $492,000, with additional attorneys’ fees averaging $60,000. $60,000. In some major metropolitan areas (e.g. New York City), the In average awards are much higher whereas in rural areas, the average may be much lower (e.g. rural Texas). the The amounts paid in attorneys’ fees fluctuate significantly The depending upon whether the claim is filed as a common tort claim or as a section 1983 claim. tort Impact of Litigation on Officers Impact Generally, officers are not at high risk of having Generally, to personally pay damage awards. to In state tort actions, the presence of tort claims In legislation typically removes the allegedly “negligent” officer as a defendant and substitutes the employing governmental entity as the actual party. Where governmental Where damages are awarded for the negligence, the employing entity pays them. employing In section 1983 actions, plaintiffs most often sue the In officer in an “official capacity,” as opposed to in “personal capacity,” with the result that the action is, “personal in actuality, filed against the employing entity, which is responsible for any resulting damage award. Exceptions to an officer’s general protection Exceptions from the payment of damages occur, most often, where the officer has been sued for intentional tort, in a state tort action, or has been sued in an “individual capacity” in a section 1983 action. “individual Due to “deep pockets” considerations, many Due plaintiffs are far more interested in imposing liability against the employing governmental entity; something that may, or may not, require entity something establishing individual liability upon the officer. The fact that an officer is not ultimately held The accountable for a damage award, however, will not necessarily preclude the officer’s being held accountable for the actions which caused the injury, such as through a disciplinary or other employment related action. related Police Liability: Underpinnings Police The increases in liability actions can be seen as The the product of a number of factors: the Zero tolerance policing strategies Increased COP activities Policy implementation and increased discretion are Policy vested in lower rank levels vested Officers are encouraged to intervene and to Officers implement problem-solving strategies implement Advances in weapons and detection technologies Liability and Deterrence Liability Does the possibility of being sued impact officer Does behavior? behavior? The Four Hypotheses Officers who have been sued will behave less Officers aggressively in the future aggressively Officers who know others who have been sued will Officers behave less aggressively behave Officers who are aware of liability potential will behave Officers less aggressively less Officers who believe police should be exempt from Officers liability will behave less aggressively liability Officers who have been sued will behave less aggressively in the future aggressively Contrary to expectation, officers who had been Contrary sued before were more likely to use impact weapons in their encounters, engaged in selfweapons iinitiated encounters with suspects more often nitiated and tended to be somewhat more aggressive than their counterparts. than The better question may be whether such The officers were already predisposed to aggressive behavior and hence engaged in actions which resulted in suit. resulted Officers who know others who have been sued will behave less aggressively behave Vicarious experience of civil liability was not a Vicarious significant predictor of future aggression. significant Officers were no more, or less, aggressive than Officers their counterparts. their An explanation for the results may be the fact that An lawsuits against the police are commonplace, so that merely knowing someone who has been sued is not the kind of significant knowledge that would result in deterrence. result Officers who are aware of liability potential will behave less aggressively behave Generally, these officers were less aggressive Generally, only in terms of their likelihood to engage suspects, not in terms of their behavior once an encounter occurred. encounter Officers who believe police should be exempt from liability will behave less aggressively liability This belief was a fairly consistent predictor of the This officer’s likelihood to engage in encounters officer’s where verbal commands or threats were used, to engage in encounters where the citizen was arrested and to engage in encounters where a suspect was searched. suspect Research Findings Research Officer initiated aggressive behaviors do not Officer seem to be deterred by concerns about being sued. sued. Beliefs about civil litigation do not affect lawful Beliefs street-level behavior. street-level Knowing someone who has been sued does not Knowing impact officer behavior. impact Reasons for Non-Deterrence Reasons Occupational culture of police (i.e. police Occupational subculture) may promote a CYA mentality that encourages “appropriate,” but not “excessive,” aggression. aggression. Officers who are cognizant of the potential for Officers being sued likely “pre-calculate” risks prior to encounters and minimize their exposure to being sued. sued. Officers likely recognize that police actions Officers coexist with the potential for liability. coexist Impact of Officer Beliefs Impact Organizations will need to address more Organizations effective means of internal control to reduce liability exposure. liability Organizations may need to address how policy Organizations is developed and implemented at street level to determine effectiveness on controlling officer behavior and limiting liability exposure. behavior A national clearing house for information on national police civil litigation should be developed. police ...
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