Preparing a Defense in Law Enforcement Litigation: A Formula for Law Enforcement
Any significant law enforcement event has the potential to develop in a claim made against the agency and the officers involved. The likelihood of a lawsuit is enhanced when individuals involved in the event are injured or claim a violation of their rights at the outset. Depending upon the nature of the event and the public interest involved, the media may also play a role in promoting scrutiny of the police action. While there are many tasks that must be considered during a critical police event, law enforcement officials must take into account the possibility of a lawsuit and should consider how their actions, statements and follow-up will impact a claim that may be made. The law enforcement agency should consider not if but when a lawsuit will come from a critical incident. The agency should consider that any police action resulting in death or serious injury is a critical incident and a potential lawsuit.
It is at this initial stage of the critical incident that the agency can ensure that the documentation is consistent with the factual elements of the police incident. Before reports are submitted by any officer, records such as dispatch tapes, call logs, emergency medical treatment records, and video tapes from the police vehicle, sallyport, booking area and area security cameras should be reviewed. The supervisor reviewing any report should make certain that it is complete, professional and accurate.
The first stage of any critical law enforcement event involves controlling the event itself while considering the safety and legal interests of citizens, victims, police officers and suspects. Once control has been established law enforcement officials can expect the media to make inquiries into the event. While many agencies use public information officers to address media questions, these public information officers are not final policy makers for the agency and thus, their words, unless presented in a fashion that demonstrates the words represent the position of the final policy maker, will unlikely have an impact on agency liability in a lawsuit. The words of the sheriff or the police chief, who is determined to be the final policy maker for the agency, may arguably create a policy of the agency even when spoken to the media. For example, assume an agency has a written policy that dictates “officers will not shoot at moving vehicles.” An officer shoots at a moving vehicle and kills the driver who is wanted for motor vehicle violations only. When questioned by the media, the chief of police reports that the officer acted consistently with agency policy, notwithstanding the fact that the officer’s conduct was clearly inconsistent with the written policy. In such a case, a person bringing a lawsuit will be able to argue that the actual policy of the agency is that which was reported by the chief, i.e. the officer did not violate policy by shooting at the vehicle, rather than the prohibition against shooting at vehicles established by the written policy. Remember, also, that the plaintiff attorney will seize on a premature announcement by the agency as setting in motion the direction and eventual outcome of the investigation. Whatever is to be given to the media while the investigation is ongoing should be cleared by the lead investigator.
Key Point: In any major law enforcement event, agency response to the media may impact ultimate liability. Final policy makers must be wary that their words may be construed as constituting the policy of the agency. Initial statements to the media should include facts but not definitive conclusions as to policy or training. One can simply answer that no conclusions on these issues will be reached until there has been a thorough review of the incident.
In any significant law enforcement event where there is a possibility or likelihood that a claim will be filed, law enforcement executives should consider calling risk management and legal representatives in at the earliest possible stage. In many parts of the country, it is not unusual for a law enforcement officer who has been involved in a shooting to have union representation and/or legal counsel on the scene before agency investigators. The same is rarely true for cities, counties or towns to have risk management and legal representatives who will take responsibility for the entity’s interest, and provide input present during these early stages of a police event. Risk management and Legal representatives who are experienced in police civil litigation can provide invaluable assistance during these early stages that may assist the entity if a claim is subsequently filed. If there is no other benefit, at least the risk management representative and legal representative will be thoroughly familiar with the event if a claim is presented.
Key Point: Where there is the likelihood of a claim in a significant police event, consider bringing in agency risk management and legal representatives at the earliest possible stages for assistance. You do not need to wait until the claim is filed.
Once the Claim is Filed
Upon notification that a claim is being made against an agency, law enforcement executives should ensure that their insurer (in many cases a city entity itself) provider and the agency attorney is properly notified. Some police agencies have been successful in forestalling an eventual civil claim, discovery and trial by responding early with a reasonable settlement agreement when there appears to be some liability exposure. In many cases, the claim is filed in accordance with a legal provision that would put these groups on notice; however, nothing should be left to chance. It should be recognized that many legal claims required a response or answer within a specified time period or else the agency and officer may be in default. Law enforcement executives do no need the expense and aggravation of losing a claim based upon some technical deficiency.
At some point, the agency must evaluate the claim and determine whether the police employees need separate legal counsel. This does not mean that the employee has done something wrong. It means that the trial defense may be facilitated by this separation allowing for some parties to be motioned out of the trial at an early stage of the process.
Key Point: Ensure that insurer and legal representatives are immediately and properly notified of any claim made against the agency.
Preparing to Defend Against the Claim
Many lawsuits filed against law enforcement agencies involve allegations that the agency has improper policies; training deficiencies; lack of proper supervision; and lack of discipline. In order to prevail against a law enforcement entity in federal court, a plaintiff must show that one of these agency deficiencies led to the violation of rights. Many state claims also focus on whether the officer followed proper police training and/or procedure.
Law enforcement executives are well-advised to conduct a thorough independent investigation of any critical police incident, irrespective of any outside investigation conducted by such entities as the district attorney. Outside investigations generally focus on criminality rather than policy and training issues. The standards of proof are different and the purpose of each of these distinct investigations is different. An agency that fails to conduct an independent internal investigation in order to review policy and training violations and/or deficiencies can expect to face this issue in a critical way during subsequent litigation. Remember that the outside agency that conducts the investigation into a critical incident may or may not do a good job. In the end, though, your agency will be held responsible civilly.
Once these investigations are concluded, police executives should be prepared to document violations of policy and training if the evidence supports such a violation. The finding of a violation, where the evidence supports it, gives validity to the policy and training as the actual practice of the agency. A finding that the officer did not violate training and policy where the evidence shows a clear violation of the written policy or training documentation may place the agency into liability notwithstanding good written policy or training. The argument of the plaintiff will be that the agency does not follow the written policy or documented training but rather has an approved practice that is different from the policy, otherwise the officer would have been clearly found in violation. It is important to remember that just because an officer has violated policy or training does not automatically translate that the officer has violated the rights of the individual bringing the lawsuit.
Law enforcement executives, particularly the chief, sheriff or other final policy maker should recognize the likelihood that they will be named as a defendant in the lawsuit. Even when not named as a defendant it is likely that the chief executive of the law enforcement agency will be deposed. In preparing for litigation, law enforcement executives should thoroughly review any department policy and department training which touches upon the particular events in question. Law enforcement officials should be prepared to discuss the policy and training as it relates to the event. If an officer has acted outside of policy or training, the executive must be prepared to say so, otherwise the policy and training become useless in protecting the agency from liability. At the same time, it should be recognized that just because an officer has acted outside of policy or training does not mean that the officer has violated a duty of care to the individual injured.
In many cases the officer is better off with the agency not in the case. There are a number of reasons why this will be the case. First, the agency may have skeletons in their closet related to hiring, supervision, policy and training that cannot be brought into the case if the agency is not in the case. The only issue in the case will be whether the officer did something wrong in the event at issue. Secondly, removing the agency from the case also removes the deep pockets from the case which diminishes the likelihood of a significant award and may enhance the likelihood that a settlement may be reached where appropriate. Finally, officers make sympathetic defendants. Officers generally have few complaints against them and few lawsuits against them. They generally have numerous arrests and commendations. As such, a jury may be less likely to make an award against a sympathetic officer. It should also be noted that many of the plaintiffs who bring lawsuits against officers are nowhere near as sympathetic. But don’t take for granted that your officer is prepared for the civil litigation process. You should, through your legal representative, ensure that the officer is knowledgeable about the facts of the police incident giving rise to the action, the training he/she had been provided and the specifics of the law involved. Not every officer can articulate the prima facie elements of the criminal activity observed which gave rise to the incident.