Civil liability avenues, defenses, and police accountability mechanisms

Police civil liability is one of the more complex areas of civil law. Because of their unique position in society, police officers have to be free to engage in behavior that would be tortious if it was committed by people outside of law enforcement. However, that same unique societal position means that those in law enforcement are given opportunities to abuse power that others do not have. The apparent dichotomy of those two realities is that people need a way to seek redress from law enforcement for violations of civil liberties, while those in law enforcement need to be able to do their jobs without fearing that every action will trigger a successful lawsuit. Society has decided to balance the two competing needs by providing ways for complainants to seek legal redress for harms done to them by law enforcement officials, while also providing some immunity and limited defenses for law enforcement officials accused of wrongdoing as part of their work.

There are two basic ways for a person to sue a member of law enforcement. The first option is to file a tort lawsuit in state court. A tort lawsuit alleges that the member of law enforcement has committed a tortious act against the person filing the suit. Torts laws vary by state, but torts that are likely to appear in state civil suits against law enforcement officials include assault and unlawful detention. A tort lawsuit is preferred by plaintiffs for many reasons. "Torts can only be settled by money awards and the standard of proof is preponderance of the evidence" (Stevens, 2004).

"Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages" (LII, 2010). There are three basic subtypes of torts: strict liability, intentional torts, and negligence. Each type of tort has a different standard of proof. In strict liability torts, "the injury or damage is so severe and it's reasonably certain that the harm could have been foreseen that the law dispenses with the need to prove intent or mental state. The only issue is whether the officer or department should pay the money award, and since officers don't usually have any money, the department almost always pays" (Stevens, 2004). In intentional torts, "the officer's intent must be proven, using a foreseeability test involving whether or not the officer knowingly engaged in behavior that was substantially certain to bring about injury" (Stevens, 2004). In negligence torts, "intent or mental state do not matter. What matters is whether some inadvertent act or failure to act created an unreasonable risk to another member of society" (Stevens, 2004).

The second option is to file a civil rights lawsuit in federal court under 42 U.S.C.S. § 1983. These lawsuits are based on allegations that the law enforcement official violated the complainant's constitutional rights. These lawsuits can be against individual law enforcement officers, but they can also be filed against governments and governmental agencies, such as a law enforcement agencies or cities. Section 1983 lawsuits are more difficult to prove than tort claims because they require a constitutional violation. "The standards under federal law are custom or policy, and deliberate indifference, a rather poorly defined concept which is similar to totality of circumstances. Although federal lawsuits can result in money awards, the amount is usually less since the main purpose is to win and get the agency to change the way it operates; i.e., obtain injunctive relief" (Stevens, 2004).

For a plaintiff to prevail in a § 1983 lawsuit, the plaintiff must establish two elements: (1) that the actor was acting under color of law and (2) that the actor violated one of the plaintiff's constitutional rights. The color of law requirement means that policed officers must be engaged in police business at the time of the alleged offense, but it does not mean that their behavior had to be legal at that time. "It sounds like a contradiction, but police behavior that is clearly illegal and violates departmental procedure, like beating up a citizen, is regarded by the court as acting under color of law" (Stevens, 2004). Furthermore, the behavior must violate a constitutional right.