By Terri Wilkin, JD, Program Director, Legal Studies at American Public University
Most law enforcement officers, at some point or another, are named as a defendant in a lawsuit. As such, they need to be better equipped to handle it, limiting not only their liability, but the department’s liability.
The Maryland Police and Correctional Training Commission (MPCTC) provides a two-week training course that is mandated by statute for all police officers who are newly promoted to either first-line supervisor (corporal and sergeants) or as an administrator (lieutenant and captains). As a former lieutenant with the Maryland State Police, I taught the module on risk management, which focused on how police officers can limit their exposure to lawsuits.
Law enforcement is a tough career as an officer not only has to protect and serve, but must do so within the confines of the law. Often, an officer will need to make a split-second decision; if the decision does not stay within the parameters of statutes, case law, department rules and regulations, then the consequences for the officer can be dire. The result can be a civil lawsuit, criminal charges, and/or administrative charges against the officer.
In addition, the officer’s department as well as the officer’s chain of command can face civil liability based on an officer’s action or inaction. Departments attempt to minimize their exposure to civil lawsuits as most plaintiffs seek monetary damages. Since police departments are governmental agencies, citizens view them as having deep pockets.
One of the problems with civil lawsuits is the burden of proof. In civil cases, the burden of proof is the preponderance of evidence, not beyond a reasonable doubt. The preponderance of evidence standard can be viewed as a scale; if one side is tilted, however slightly, then the standard is met.
Life, liberty, and property rights are the biggest risks facing officers when they are performing their job. Violating any of these constitutional rights can result in not only the officer and department potentially being sued civilly, but also in criminal and/or administrative charges against an officer. With this is mind, officers need to understand and be able to apply the law in high-risk situations, keeping themselves and the public safe while ensuring that they protect the constitutional rights of the individuals involved.
An officer can be liable in two ways:
- Depriving an individual of constitutional rights. There is no requirement for an individual to prove that you had a specific intent to deprive him or her of constitutional rights.
- Enforcing a law that you know or reasonably know to be unconstitutional depriving an individual of constitutional rights.
An officer is not liable if he or she:
- Acted in good faith.
- Had probable cause, assuming the law being enforced was constitutional.
Some examples include:
- Unlawful searches and arrests without probable cause (see U.S. v. Jones, 132 S. Ct. 945 (2012)). The standard is: would a trained officer reasonably conclude that probable cause existed (see U.S. v. Mendenhall, 100 S. Ct. 1870 (1980)).
- Misleading and/or knowingly false probable cause affidavits (see Brady v. Maryland, 373 U.S. 83 (1963); Smith v. Cain, 132 S. Ct. 627 (2012); Messerschmidt v. Millender, 132 S. Ct. 1235 (2012). This includes perjury and intentionalomission of material facts.
- Excessive force (see Tennessee v. Garner, 471 S. Ct. 1 (1985) and Graham v. Connor, 490 S. Ct. 396 (1989). The standard is the objective reasonableness of an officer’s actions based on the facts and circumstances know at the time of the incident.
Anyone can file a lawsuit and there is always the possibility that an officer will be sued. The best defense for an officer is to adhere to the law. “I didn’t know” is not a defense.
Have you been involved in a lawsuit? What advice would you give other officers?
About the Author: Terri L. Wilkin graduated from the University of Maryland’s Francis King Carey School of Law in May 2007. Terri is admitted to practice law in the State of Maryland and the District of Columbia, and has been admitted in the Federal United States District Court for the District of Maryland. Prior to law school, she obtained a Master of Science dual degree from the Johns Hopkins University in Leadership and Finance/Accounting. Her 26-year career with the Maryland State Police includes assignments in patrol, criminal and drug investigations, white collar crime, intelligence work, training, the Deputy Director of the Planning and Research Division, and as the Department Prosecutor.