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Tuesday, March 22, 2016

Civil Liability for Police Action

    Civil liability for actions taken by government employees has it's roots in the “Ku Klux Klan Act” of 1871. Title 42 Section 1983 is the applicable section. In Monroe v. Pope, based upon Section 1983, the Supreme Court made a ruling “To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States” (Cornell University Law School, n.d.). This protection extends to failure to act as well. In City of Canton v. Harris, the Supreme Court ruled that police inaction can result in civil liability for both officers and their agency (DPS –Law Enforcement Academy, n.d., p.9).
    A policeman can be held liable for actions undertaken under color of authority as well as the agency he works for. Agencies can be held civilly liable, as “the Supreme Court first recognized municipal liability when it interpreted the term 'person,' as used in section 1983, to include a municipal government (Elliot, 1985, para. 2). The Supreme Court has specified the boundaries for such liability “Under the section 1983 civil rights statute, municipalities are liable when improperly trained, supervised, or disciplined police officers violate an individual's civil rights.(McKittrick, 1987, p. 261). An officer may still be held personally responsible for actions he undertakes “Intentional Torts: An intentional tort would occur when an officer, without justification, intentionally commits an act which is recognized by the law as a tort” (Ryan, n.d, para. 2). an officer may be held criminally liable for his actions under the following circumstances: violation of state criminal code or federally under 18 U.S.C. sec. 242: This statute is a federal statute that creates criminal liability for the intentional violation of rights (Ryan, n.d, para. 14-15).
    The following Supreme Court cases have established civil liability protections, included a
duty to act in some cases, set standards for immunity, and defined the scope of civil liability:

Monroe v. Pope (1961)
Bivens v. Six Unknown Agents(1971)
Monell v.Department of Social Services(1978)
Martinez v. California (1980)
Owen v. City of Independence (1980)
Polk County v. Dodson (1981)
Harlow v. Fitzgerald (1982)
Oklahoma City v. Tuttle (1985)
Tennessee v. Garner (1985)
City of Canton v. Harris (1989)
Graham v. Conner (1989)
Board of the County Commissioners of Bryan County v. Brown (1997)
Richardson v. McKnight (1997)
Saucier v. Katz (2001)
Ashcroft v. Iqbal (2009)
Connick v. Thompson (2011)
(partially sourced from Blum, 2013)

    The primary difference in standards for liability between lethal incidents and non-lethal incidents is the concept of objective reasonableness “Civil liability for use of deadly force is based on an objective reasonableness standard.”(“Civil liability for use of deadly force – Part One- General principles and objective reasonableness,” 2007, p. 107). This standard was set in the Supreme Court case, Graham v. Conner.
    The best way for law enforcement officials should be able to protect themselves against civil liability suits is to know exactly what the current laws are, and to verify that they enforce these laws within Constitutional bounds. There are limits to liability. Absolute immunity protects a government official completely from lawsuits and criminal prosecution. It is extended “ to administrative bodies in the exercise of quasi-judicial powers, which bodies are required by statute to exercise” (US Legal, n.d., para. 4). Qualified immunity is based on a set of conditions, in which the official must be acting:
  • within the scope of his/her office;
  • are in objective good faith, and
  • do not violate clearly established statutory or constitutional rights of which a reasonable person would be aware. (US Legal, n.d., para. 2).
Qualified immunity has been outlined in the Supreme Court cases, Bivens v. Six Unknown Agents, Harlow v. Fitzgerald, and Saucier v. Katz,
    Civil liability is a necessary concept for maintaining a Republic. Public officials and the agencies that employ them must be held accountable when they violate Constitutional protections. Public officials are not above the law.


Blum, K. (2013). Municipal liability and liability of supervisors: litigation significance of recent trends and developments. Touro Law Review. Retrieved June 8, 2015, from http://www.tourolawreview.com/2013/01/municipal-liability-and-liability-of-supervisors/

Civil liability for use of deadly force – Part one - General principles and objective reasonableness.(2007). Americans for Effective Law Enforcement (AELE) Monthly Law Journal.

Cornell University Law School. (n.d.) Monroe v. Pope. Retrieved June 8, 2015, from https://www.law.cornell.edu/supremecourt/text/365/167

DPS –Law Enforcement Academy. (n.d.) Civil liability and civil rights online. Retrieved June 8, 2015, from http://nmlea.dps.state.nm.us/wp-content/uploads/2012/05/Civil_Liability_and_Civil_Rights.pdf

Elliot, C. (1985). Comment: Police misconduct: Municipal liability under Section 1983. LexisNexis. Retrieved June 8, 2015, from https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=74+Ky.+L.J.+651&srctype=smi&srcid=3B15&key=65d942e9cb9b38ead59321ef447b5939

McKittrick, C. L. (1987). Municipal liability for police misconduct: Rymer v. Davis. Wash. UJ Urb. & Contemp. L., 32, 261. Retrieved June 8, 2015 from http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/waucl32&section=13

Ryan, J. (n.d.). Overview of police liability. Police Link. Retrieved June 8, 2015, from http://policelink.monster.com/training/articles/2120-overview-of-police-liability-

US Legal. (n.d.). Absolute or qualified immunity. Retrieved June 8, 2015, from http://administrativelaw.uslegal.com/liability-of-administrative-agencies/absolute-or-qualified-immunity/

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