Police Use of Force, Civil Liability, and Reform Strategies

Introduction

The issue of the use of force and civil liability among police officers has been the subject of debate for many years. The Rodney King trial and subsequent riots brought a great deal of attention to the excessive use of force and the justice system. In the years since the Rodney King case, there have been many additional incidents of excessive force.

The use of force and civil liability is problematic for citizens, victims of brutality, the police, and other public officials. It is important to understand that the problem does not arise as a derivative of "the use of force" but rather it is the excessive use of force that is problematic for the aforementioned stakeholders. One of the problems that arises when police officers use excessive force is the distrust that develops between citizens and officers. Citizens begin to fear the very people who are supposed to protect them. In addition, police officers and their departments face the humiliation of officer misconduct. Civil liability suits can also be extremely costly for everyone involved.

Literature Review: Defining Excessive Force and Civil Liability

The purpose of this study is to examine civil liability in terms of use of force as it relates to police officers. The study seeks to determine the steps that can be taken to reduce the excessive use of force and regain the trust of citizens. The discussion includes a comprehensive literature review that defines the issue and its consequences.

There are two main concepts that are essential to understanding the basis of this study: "excessive use of force" and "civil liability." The excessive use of force is usually defined as any force that can result in serious bodily harm or death (Alpert and Smith, 1994). In addition, excessive use of force can be described as any action that is unnecessary when subduing or arresting a subject.

Alpert and Smith (1994) explain that a clear definition of excessive force is not present in many jurisdictions around the country. The authors assert that the lack of a clear definition is a detriment to both the public and the police. The lack of a clear definition also led to the creation of an "objective reasonableness" standard, which emerged as a result of Graham v. Connor (1989) (Alpert and Smith, 1994). Alpert and Smith (1994) identify several problems with this standard. As the authors explain:

"One of the obvious problems created by a reasonableness standard is determining the appropriate level of reasonableness. Research results have indicated that police officers, especially street officers, are able to assess what is good police work and when force is excessive. This may explain why most accusations of excessive force are denied at the department level. Of course, it may also be that police officers band together, close ranks, and protect their fellow officers against accusations of excessive force... Reasonableness may have several levels and several audiences. It is, however, the assessment of force by the civilian 'reasonable person' that matters. And force may involve hands, batons, or other weapons if used appropriately and according to policy and training (Alpert and Smith, 1994)."

Civil liability is defined as "potential responsibility for payment of damages or other court-enforcement in a lawsuit, as distinguished from criminal liability, which means open to punishment for a crime" ("Civil Liability," n.d.). An article published in Monthly Labor Review describes the problems that arise when police officers use excessive force and civil liability claims are filed (Bohling, 1997).

Landmark Cases and Civil Litigation Trends

The article describes the United States Supreme Court's reaction to the issue of civil liability and the police in the decision of Board of County Commissioners v. Brown (1997). In this case, the Supreme Court addressed the liability that public employers bear for the actions of their employees (Bohling, 1997). In a five-to-four decision, the Court ruled that the municipality is not liable for the actions of a police officer using undue force. The claimant argued that the county was liable because the offending officer had a criminal record that was overlooked during the municipality's employment screening process (Bohling, 1997).

The issue of police liability and excessive force was never more evident than in the case of Rodney King and the Los Angeles Police Department. In the years that followed, other civil suits were filed against police officers. According to Anderson (1999), a series of lawsuits were filed against the LAPD for the excessive use of force with dogs. The lawsuits alleged that several subjects were bitten by dogs after being chased by police, and contended that the subjects were injured and that the use of dogs was unnecessary and constituted gratuitous force. Anderson (1999) reports that attorneys in these cases were able to present:

"Chilling videotape of an actual dog attack and pointing out the disproportionate number of serious injuries that resulted from arrests accomplished with the help of dogs. The city eventually paid $3.5 million to settle these lawsuits. More important, Los Angeles Police Chief Willie Williams ordered a change in police policy. Instead of following a 'find and bite' procedure, dogs and their handlers were retrained for 'find and bark.' The results were immediate and impressive: dog bites declined from 360 per year, including more than 100 requiring hospital treatment, to 30 per year with no hospitalizations (Anderson, 1999)."

In other cases, civil liabilities related to excessive force have also gone in favor of the victim. An article entitled "Civil Liability for Government Wrongdoing" explains that police officers are often the target of civil liability claims ("Civil Liability for Government Wrongdoing," 2004). The article notes that more than 30,000 civil claims are filed against police officers every year, and that approximately 4–8% of these claims end in judgments for the victim. These lawsuits carry an average settlement of $2 million ("Civil Liability for Government Wrongdoing," 2004). In addition, nearly half of police liability cases are settled out of court, and civil liability claims against police officers can take up to five years to resolve ("Civil Liability for Government Wrongdoing," 2004).

The article also explains that there are two primary ways to file a civil suit against the police ("Civil Liability for Government Wrongdoing," 2004). The accuser may file a tort law claim, which is the most popular method because officers can be found liable based on a preponderance of the evidence, and it offers a monetary award. The second method is a civil rights claim, which accuses the police of violating an individual's constitutional rights. States cannot be sued under a civil rights claim, but municipalities and sheriffs can be sued if they are (a) acting under color of state law, and (b) violating a specific Amendment right guaranteed by the Constitution. The standards under federal law are custom or policy and deliberate indifference — a rather poorly defined concept similar to the totality of circumstances standard ("Civil Liability for Government Wrongdoing," 2004).

Conclusion

Irwin, L. (1991, September/October). Cops and cameras: Why TV is slow to cover police brutality. Columbia Journalism Review, 30, 15+.

Parry, J. T. (2002). Judicial restraints on illegal state violence: Israel and the United States. Vanderbilt Journal of Transnational Law, 35(1), 73+.

Police brutality must end. (2000, April). The Progressive, 64, 8.

Reed, F. (1997, August 18). Cop brutality thrives in bad departments. The Washington Times, p. 2.

Ross, J. I., & Hale, D. C. (2000). Making news of police violence: A comparative study of Toronto and New York City. Praeger Publishers.

Scully, S. (1999, May 5). Police in line for grant: $3 million proposal targets brutality in 4 cities. The Washington Times, p. 4.

Sipe, J. R. (1997, June 16). Crime rate and killings drop, but critics say brutality is up. Insight on the News, 13, 42.

Skolnick, J. H. (2000, March 27). Code blue. The American Prospect, 11, 49.

Smith, B. W. (2003). The impact of police officer diversity on police-caused homicides. Policy Studies Journal, 31(2), 147+.

Vila, B., & Morris, C. (Eds.). (1999). The role of police in American society: A documentary history. Greenwood Press.

Wagner, A. (2000, August 27). Mall rally says King dream stalled by racial profiling, police brutality. The Washington Times, p. 13.

Welsh, W. N. (1992). The dynamics of jail reform litigation: A comparative analysis of litigation in California counties. Law & Society Review, 26(3), 591–625.

Winright, T. L. (1995). The perpetrator as person: Theological reflections on the just war tradition and the use of force by police. Criminal Justice Ethics, 14(2), 37–56.