Understanding Police Misconduct Litigation in Maryland, Study notes of Law

Download Understanding Police Misconduct Litigation in Maryland and more Study notes Law in PDF only on Docsity! When Police Officers Are Sued An Overview of Police Misconduct Litigation in Maryland Lawsuits filed against law enforcement officers (collectively referred to as “police officers” in this publication) are an established part of the legal landscape. Although police officers generally have broad powers to carry out their duties, the United States Constitution, State Constitutions, and other laws place limits on the actions police officers may take in enforcing the law. The videotaped beating of motorist Rodney King in Los Angeles more than 25 years ago shockingly illustrated to the nation that police officers can cross the line. Subsequent events have etched images of police use of force, including fatal shootings, into the nation’s consciousness. Moreover, the continuous recording of police officers by citizens has created an atmosphere in which lawsuits against police officers have become the rule rather than the exception. Those who claim to have been victimized by police officers have ample recourse available under both federal and state law. One of the primary purposes of civil rights laws is to protect citizens from abuses by government, including police misconduct. In addition to the compensatory and punitive damages and other forms of relief available to Plaintiffs, federal civil rights laws allow for the recovery of attorney’s fees, providing a further incentive to sue. Police misconduct litigation is vastly different from the criminal justice system with which police officers are most familiar. In police misconduct cases, not only police officers, but their supervisors, agencies, and local governments can be Defendants. Cases can be time-consuming and take years to resolve. Settlements can leave officers embittered and judgments can damage careers. This publication focuses on what happens when police misconduct lawsuits are filed. The objective is for police officers to be able to answer the most common questions related to lawsuits: What can I be Image courtesy of Jeffrey Sauers via commercialphoto.com 2 sued for? What do I do if I am sued? What types of damages or other relief can I be sued for? Will I be assigned an attorney if I am sued? What will occur during the litigation? Will I be covered in the event a judgment is entered against me? The civil litigation process should not be alien to police officers; officers must and should have a basic understanding of the process in which they have so much professionally and personally at stake. The Exercise of Police Powers and Allegations of Police Misconduct The exercise of most routine police powers, i.e., investigatory stops and detentions, arrests, searches and seizures, the use of force, and custodial interrogations, can give rise to a lawsuit alleging police misconduct. The Sources of Legal Claims of Police Misconduct A. The Federal Sources The source of police misconduct claims under federal law is found in in the United States Constitution. Lawsuits alleging federal constitutional violations against state and local police officers are brought pursuant to federal law, 42 U.S.C. § 1983, popularly known as “Section 1983.” Section 1983 establishes a cause of action for any person who has been deprived of rights secured by the United States Constitution or laws of the United States by a person acting under color of state law. In order to prevail on a § 1983 claim, a Plaintiff must prove that (1) the conduct was committed by a person acting under color of state law and (2) as a result of this conduct he or she was deprived of rights, privileges or immunities secured by the Constitution or the laws of the United States. The first requirement is known as the state action requirement. The Plaintiff must prove that the police officer acted with the appearance of legal power, even though the conduct may have violated the law. An example would be a police officer making an arrest, which he or she is empowered to do, but lacking probable cause to do so. Most commonly, police officers are sued under § 1983 for alleged violations of the Fourth Amendment (unreasonable search and seizure), which governs detentions and arrests, the Fourteenth Amendment (guarantees against deprivations of life, liberty, or property without due process of law), and First Amendment (protection of freedom of speech and assembly). B. The State Sources There is no state version of § 1983. Police officers can be sued directly under the Maryland Constitution, or more specifically, the Maryland Declaration of Rights. The Declaration of Rights is a series of Articles establishing certain rights for people in Maryland. These include guarantees similar to those found in the first ten amendments to the United States Constitution, commonly referred to as the Bill of Rights. Examples include: freedom of speech (Article 40), guaranty of due process (Article 24), and prohibition of unreasonable searches and seizures (Article 26). In addition to claims under the Declaration of Rights, police officers can be sued under Maryland’s common law (judge/court made law) for an array of torts. “Tort” means “wrong” and, unlike a criminal case, which is initiated and managed by the State, a tort suit is a civil action brought by a Plaintiff against a Defendant. Common law torts include: assault, battery, false imprisonment, false arrest, malicious prosecution, defamation, trespass, and intentional infliction of emotional distress. 5 Where the Lawsuit May be Filed Police misconduct lawsuits may be filed in federal or state court. To file in federal court, i.e., the United States District Court for the District of Maryland, there must be at least one claim that arises under federal law, such as a claim under § 1983. State law claims are often included in Complaints filed in the United States District Court. Section 1983 claims can be filed in state court. If a lawsuit filed in state court includes a claim under § 1983, the Defendants can, if they all agree, remove the case to the United States District Court. After the Lawsuit is Filed The clerk of court will issue a Writ of Summons for each Defendant. Service of the Writ of Summons, Complaint, and any related papers will then be made upon each Defendant. Service is effected in various ways, including service by private process server, sheriff (state court), U.S. Marshal (federal court), and certified mail. Problems commonly arise when someone without authority accepts service for a police officer or signs for and receives restricted or certified mail addressed to individual officers without express permission to do so. Police officers can avoid these problems by making it known to the Chief of Police or Sheriff, in writing, that no other person has express or implied authority to accept service of process on their behalf or to sign for and receive restricted and/or certified mail deliveries addressed to them individually. When the Lawsuit is Served Since response times are triggered by service of process, it is of critical importance for police officers to:  Retain all documents served, including the mailers, envelopes, etc., in which the Writ of Summons, Complaint, and other papers were contained.  Immediately notify the Chief of Police or Sheriff when and how you were served with the Complaint.  Make sure that all departmental protocols concerning service of process are followed.  Follow-up with the Chief of Police or Sheriff to make sure that the paperwork has been forwarded to the appropriate person, department, or entity.  Failure to take action could have serious consequences including the possibility of a default judgment being entered against you.  Ensure that your personal contact information on file with your department is current.  Cooperate with your assigned counsel. Failure to cooperate can result in serious consequences, including the withdrawal of your defense and the loss of insurance coverage.  Civil litigation is much different from the criminal justice system with which you are intimately familiar; it is far more detailed and time consuming.  Remember that you are often the best source of information concerning the events giving rise to the lawsuit. Begin assembling all documents (paper and/or electronic) that is in your or your agency’s possession, and reflect on the events to refresh your recollection of them. 6 The Insurance Decisions: Coverage and Indemnification Once the Chief of Police or Sheriff has notified the appropriate municipal or county officials, including the municipal or county attorney, of the lawsuit, it is expected that the appropriate official (usually the Risk Manager) will place the local government’s insurer (LGIT, commercial carrier, or self-insurance fund manager) on notice and transmit copies of all papers served upon the officer. At LGIT, the Claims Services Department will review the lawsuit and determine if there is an obligation to defend (duty to defend) and potentially to indemnify (duty to indemnify). The Decision to Defend and Scope of Employment The duty to defend is the insurer’s obligation to provide an insured with defense to claims made under a liability insurance policy. As a general rule, an insured need only establish that there is potential for coverage under a policy to give rise to the insurer’s duty to defend. Therefore, the duty to defend may exist even where coverage is in doubt and ultimately does not apply. The decision to defend essentially is tied to the allegations in the Complaint. For example, if it is alleged in the Complaint that the police officer made an unlawful arrest in performance of his or her duties, LGIT will provide a defense for the officer sued. In other words, the decision, and duty, to defend, generally arises when it is alleged that the officer acted in performance of his or her duties as a police officer, i.e., within the scope of employment. There are many considerations relevant to whether an employee’s actions were within the scope of employment. The general test for determining if an employee’s tortious acts were within the scope of his or her employment is whether the acts were in furtherance of the employer’s business and were “authorized” by the employer. The Maryland Court of Appeals described it this way in 1991: When an employee’s “actions are personal, or where they represent a departure from the purpose of furthering the employer’s business, or where the employee is acting to protect his own interests, even if during normal duty hours and at an authorized locality, the employee’s actions are outside the scope of his employment.” Sawyer v. Humphries, 322 Md. 247 (1991). Here are just two examples of Maryland appellate courts speaking to scope of employment in the context of police misconduct litigation: “[Plaintiff] concedes that the scope of an officer’s employment does not encompass the rape of a citizen and that neither the Local Government Tort Claims Act nor the first paragraph defining an insured in the County’s self-insurance regulations require the County to pay the tort judgment against [its police officer.]” Wolfe v. Anne Arundel County, 374 Md. 20, 30 (2003). “[Defendant’s] actions after the shooting—calling 911, identifying himself as a police officer, putting on his police badge, and filing reports—do not show that he was acting within the scope of his duties as a police officer when he shot the two delivery men in his house.” Clark v. Prince George’s County, 211 Md. App. 548, 578 (2013). The Decision to Indemnify Indemnification is the obligation to pay another for a future liability that might arise. This usually includes coverage of liability in the form of actual damages or losses such as having to pay a third party. In addition, such provisions often include coverage for liability in the form of defense costs, i.e., the cost of dealing with 7 a third party claim even if there is no ultimate liability to the third party. Punitive damages are generally excluded from coverage. LGIT’s practice is to promptly notify Defendants in writing of its decisions concerning defense and indemnification. The reasons are set forth fully, and any denials of defense or exclusions or other limitations on indemnification. Any “reservation” of coverage (essentially deferring final decision until later stages of the litigation, including the entry of judgment) must be fully explained in writing. Defending the Lawsuit Once the insurer assigns counsel, the defense of the lawsuit begins. Your attorney will contact you and establish the line of communication that must remain intact throughout the litigation. Your attorney will explain his or her approach to the case and what is expected from you in the way of cooperation. Your active cooperation and participation throughout the litigation will be critical to your defense. A. Raising Defenses Defenses are raised through an Answer or a Preliminary Motion to Dismiss. An Answer is a written pleading filed by a Defendant to respond to a Complaint filed and served upon that Defendant. An Answer generally responds to each allegation in the Complaint by denying or admitting it, or admitting in part and denying in part. A Motion to Dismiss is filed before an Answer and challenges the legal sufficiency of the Complaint; it does not test the ultimate merits of the case. There are different reasons for filing a Motion to Dismiss. Some include:  A Lack of Subject Matter Jurisdiction (Wrong Court);  Lack of Personal Jurisdiction (No Jurisdiction Over the Person Sued);  Improper Venue (Wrong Jurisdiction);  Failure to State a Claim for Which Relief Can be Granted (Insufficient or Deficient Allegations);  Insufficient Service of Process;  Statute of Limitations; and  Qualified Immunity (where the law was not clearly established at the time of the alleged wrongdoing, leaving the officer “to make a bad guess in a gray area.”). All police officers have some form of immunity for negligence (unintentional conduct). However, there are no state law immunities available to municipal or county police officers against State constitutional claims or intentional torts. The opposite is true for deputy sheriffs who are immune from constitutional claims and intentional torts absent malice and/or gross negligence. Qualified immunity can be raised against § 1983 claims, including excessive force claims, but its utility is limited. It is most effective in cases concerning seizures effected by relatively new devices, such as Tasers, or searches of new or relatively new technological devices. If a Motion to Dismiss is filed, the Court may deny it; grant part but not all of it; or grant all of it, thus ending the case. If the case proceeds, the litigation then enters the Discovery phase.