CIVIL LIABILITIES Goal To provide the student with

CIVIL LIABILITIES Goal: To provide the student with a basic awareness of the authority conferred upon them, and of the special responsibilities and potential civil liabilities of a peace officer. 1

Performance Objectives �NAC 289. 160 �Please refer to your POST Performance Objectives. 2

Introduction �Our liability is enormous. �We are required to act. �Courts, Laws, Regulations, Policies, Procedures, guidelines and Direcitives 3

Definitions �Liability: • The state of being legally responsible for something. • Retrieved 11/14/2017 @ 11: 44 AM - https: //en. oxforddictionaries. com/definition/liability 4

Definitions �Civil Liabilities • The potential responsibility for payment of damages (obligation) or other court-enforcement in a lawsuit. • Civil Liability and Criminal Liability are separate. 5

Definitions �Personal Liabilities: • The notion that a law enforcement officer can be held civilly responsible for their actions related to their positions. • Intentional Injuries • 42 U. S. C. 1983 6

Bivens v. Six Unknown Agents (1971) � This is the case that made it possible for officers to be sued civilly. � Federal Bureau of Narcotics agents searched the Brooklyn home of the plaintiff, Webster Bivens, and arrested him without a warrant. Drug charges were filed but were later dismissed by a US commissioner. Bivens filed a lawsuit alleging the violation of his Fourth Amendment freedom from unreasonable search and seizure. 7

Definitions �Vicarious Liability: • Vicarious liability refers to liability for the negligent or criminal acts of another person that is assigned to someone by law. Vicarious liability exists when liability is attributed to a person who has control over or responsibility for another who negligently causes an injury or otherwise would be liable. • Generally Supervisors. 8

Definitions �Negligence: • A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. • A mere failure to exercise reasonable care. 9

Definitions �Gross Negligence: • A conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. 10

Definitions �Intentional Actions: • Occurs when a person willfully engages in an action where the chances that harm will result is so great that he/she must be “aware” that harm will occur. • Intentional acts carry an element of intent. 11

Definitions �Indemnify: • Is to compensate for loss or damage; to provide security for financial reimbursement to an individual in case of a specified loss incurred by the person. 12

Burden of Proof �Civil Law- • “Preponderance of the Evidence” • This means 50% plus a little. • The little may be described as the “weight of a feather” 13

Types of damages for civil suits � Nominal Damages – may be awarded when an inmate fails to prove the actual amounts of damage incurred. These are usually paid by the state � Compensatory Damages – will be awarded if the inmate can prove the actual amount of damages sustained. These are usually paid by the state � Punitive Damages – may be awarded to an inmate over and above what will compensate them for their loss, if the defendant acted in a wanton, reckless, malicious or fraudulent manner. These are paid by the defendant. 14

Burden of Proof �Criminal Law • “Beyond a reasonable doubt” �Proof that is of such convincing character that a person would be willing to rely and act upon it without hesitation. • The highest standard of proof possible • The standard that must be met is that no other logical explanation can be derived from the facts except that the defendant committed the crime. 15

Basis of Liability- Use of Force �Discussion- • What is reasonable and necessary force? 16

Basis of Liability- Use of Force �Freeman v. Gore (5 th Cir. 2007) • Officers in all states are granted the authority to use force to accomplish lawful objectives, such as arrest, entry to serve a warrant or make an arrest, and detention. 17

Basis of Liability- Use of Force �Graham v. Connor, 490 U. S. 386 (1989) • All use of force cases are measured by the standards set in this case. • Established a three prong test�What was the severity of the crime that the officer believed the suspect to have committed or be committing? �Did the suspect present an immediate threat to the safety of the officers or the public? �Was the suspect actively resisting arrest or attempting to escape? 18

Basis of Liability- Use of Force � Graham v. Connor- Continued • The court also stated- "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving–about the amount of force that is necessary in a particular situation. “ • The Court also stated that the use of force should be measured by what the officer knew at the scene, not by the "20/20 vision of hindsight" by a Mondaymorning quarterback. 19

Basis of Liability- Use of Force � Graham v. Connor – Refined • Commonly referred to as “the 12 court varibles” � 1. Nature of the offense � 2. Time of day and the location � 3. The size and age of the suspect compared to the officer � 4. Any physical odds against the officer � 5. The amount of force used is based on the resistance encountered � 6. Behavior of the suspect whom the force was used on � 7. The need for the application of force � 8. Actions by third parties who may have been present � 9. The feasibility or availability of alternative actions � 10. The relationship between the amount of force used and the need for using force � 11. The extent of the injury inflicted � 12. Whether the force used was applied in a good faith effort to maintain control or to restore order or whether the force was applied maliciously or sadistically for the very purpose of causing harm 20

Basis of Liability- Use of Force � Payne v. Pauley, 337 F. 3 d 767 (7 th Cir. 2003) • An officer may use only that force which is necessary to effect an arrest or detention. • Anything more is excessive force 21

Basis of Liability- Use of Force � The Rodney King Case- • A federal judge noted that the use of a Taser and multiple baton strikes against Rodney King, including a PR 24 baton strike to the face, were, if not reasonable, at least not criminally excessive force. Officers delivered some 50 powerful blows and strikes after King first resisted officers, he complied with commands. After King assumed a felony prone position, one of the officers kicked him and another struck him five or six times with a baton. • Even though officers used substantial force to compel King into a prone position, only the last few blows lead to criminal liability because King had complied with the order to assume a prone position and submit to handcuffing. United States v. Koon, 833 F. Supp. 769 (C. D. Cal. 1993), aff’d in part, 518 U. S. 81 (1996). 22

Basis of Liability- Use of Force � Tennesee v. Garner, 471 U. S. 1 (1985) • In Tennessee v. Garner, 471 U. S. 1 (1985), the Court suggested that there are three circumstances when an officer can use deadly force: first, when the officer is threatened with a deadly weapon; second, when the officer has probable cause to believe that the suspect poses a threat of serious physical harm or death to the officer or to another; or third, when the officer has probable cause to believe that the suspect has committed a crime involving threatened or actual serious physical harm or death to another person. The Court also noted that, when feasible, a warning should precede the use of deadly force. 23

Basis for Liability- Illegal Search and Seizure �The Fourth Amendment to the U. S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property -- whether through police stops of citizens on the street, arrests, or searches of homes and businesses. 24

Basis for Liability- Illegal Search and Seizure �Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers interfere with individuals' Fourth Amendment rights only under limited circumstances, and through specific methods. 25

Basis for Liability- Illegal Search and Seizure �What Does the Fourth Amendment Protect? • In the criminal law realm, Fourth Amendment "search and seizure" protections extend to: �A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and �Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples. 26

Basis for Liability- Illegal Search and Seizure � When Does the Fourth Amendment Apply? • The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others: �An individual is stopped for police questioning while walking down the street. �An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk. �An individual is arrested �Police officers enter an individual's house to place him or her under arrest. �Police officers enter an individual's apartment to search for evidence of crime. �Police officers enter a corporation's place of business to search for evidence of crime. �Police officers confiscate an individual's vehicle or personal property and place it under police control. 27

Indemnify � NRS 41. 0349 Indemnification of present or former public officer, employee, immune contractor or State Legislator.   In any civil action brought against any present or former officer, employee, immune contractor, member of a board or commission of the State or a political subdivision or State Legislator, in which a judgment is entered against the person based on any act or omission relating to the person’s public duty or employment, the State or political subdivision shall indemnify the person unless: 28

Indemnify �The four exceptions that invalidate indemnification. • 1. The person failed to submit a timely request for defense. • 2. The person failed to cooperate in good faith in the defense of the action. • 3. The act or omission of the person was not with the scope of the person’s pubic duty or employment. • 4. The act or omission was waton or malicious. 29

Indemnify � NRS 41. 0339 Circumstances under which official attorney to provide defense or employ special counsel. � The official attorney shall provide for the defense, including the defense of crossclaims and counterclaims, of any present or former local judicial officer, state judicial officer, officer or employee of the State or a political subdivision, immune contractor or State Legislator in any civil …… 30

Indemnify � NRS 41. 0339 continued- � action brought against that person based on any alleged act or omission relating to the person’s public duties or employment, or any other person who is named as a defendant in a civil action solely because of an alleged act or omission relating to the public duties or employment of a local judicial officer, state judicial officer, officer or employee of the State or a political subdivision, immune contractor or State Legislator, if: 31

Indemnify • NRS 41. 0339 continued • Within 15 days after service of a copy of the summons and complaint or other legal document commencing the action, the person submits a written request for defense: �To the official attorney; or �If the officer, employee or immune contractor has an administrative superior, to the administrator of the person’s agency and the official attorney; and 32

Indemnify NRS 41. 0339 continued- The official attorney has determined that the act or omission on which the action is based appears to be within the course and scope of public duty or employment and appears to have been performed or omitted in good faith. 33

Indemnify NRS 41. 0339 continued- �If the official attorney determines that it is impracticable, uneconomical or could constitute a conflict of interest for the legal service to be rendered by the official attorney or a deputy of the official attorney, the official attorney must employ special counsel pursuant to NRS 41. 03435 or 41. 0344, whichever is applicable. 34

DEFENSES AGAINST NEGLIGENCE �Assumption of Risk – a person has knowingly put themselves in a set of circumstances knowing that there is pending danger �Unavoidable Accident – nothing in your power could alter the set of circumstances which caused this accidental occurrence 35

TYPES OF RELIEF �Injunctive Relief – a court orders someone not to do something, or to do something �Declaratory Relief – a court issues a judgment stating or “declaring” the rights of the parties, but no specific action is ordered, nor are damages awarded 36

Civil Rights Act of 1964 �President Lyndon Johnson signed the Civil Rights Act of 1964 into law. The Civil Rights Act of 1964 out- laws discrimination on the basis of race, color, religion, national origin, and sex in public accommodations, employment, and federally funded programs. 37

CIVIL RIGHTS ACTIONS �Any person is liable to the party inured who: • Acts under the color of law: �Subjects or causes a person to be subjected �The person injured is a citizen or inhabitant of the USA �Deprives of any rights �Violates rights that are secured by the Constitution or Laws 38

SUITS FILED Civil Rights Suit • Overcrowding • Denied access to certain Rights Infringed • Right to be free from cruel and unusual punishment magazines & newspapers • Right to free speech • Denied special religious diet • Freedom of religion 39

DEFENSES FROM CIVIL RIGHTS SUITS �“Good Faith” – when an employee was working within the scope of their authority and did not know or had no way of knowing he/she was depriving an individual of rights 40

CRIMINAL SUITS �If an inmate thinks, the criminal code has been violated • Examples: �Shooting someone while on duty �Stealing an inmate’s property �Assaulting an inmate 41

ADMINSITRATIVE ACTION �Can be taken against an employee or supervisor involved in misconduct • Examples: �Suspended without pay �Put on Administrative leave �Being terminated 42

BEST PROTECTION FROM LIABILITY � Follow written and verbal orders and instructions carefully � When in doubt – seek clarification from supervisors � Review pertinent rules, regulations, procedures, and post orders regularly � Be sure you know what is expected and that you understand the consequences of your actions � Maintain good records (FACTS not Opinions) • Who, what, where, when, how, why � Contact your supervisor when corrective actions are necessary 43

Any Questions � ? 44