Police Liability Issues

All Duties, Imposed or Volunteered, Must Be Performed With Reasonable Care

• Better – at times – not to assume a duty than to assume it and perform it poorly.

• Liability for failure to act is very rare.

• However, when police fail to act where duty is clear, liability attaches.

Care of Incapacitated Persons

Drunks• No Arrest• Must be protected – placed in some sort of protective custody

until sober

Mentally Ill• Emergency Commitment• Court Ordered

Emergency Medical Care

Unknown if an affirmative duty to take action exists.

The “Good Sam” law should apply in most situations. Cannot impede care being given by others on scene.

Arrestees

Duty to prevent assault by others (at scene or at holding facility).Do not place combative arrestees in the same cell.Jail Suicides• Affirmative duty exists if officer has knowledge (i.e., by

observation, from a psychologist, or threats, etc.).• Officer must act reasonably.• No strict liability (but not complete bar to liability).• All existing department regulations must be followed.

Reasonable Medical Care

Liability greatest when injuries caused by the arrest procedure itself.• Shows that officer probably had knowledge of injury.• Can lead to a Title 43 U.S.C. 1983 action.

We are responsible for illness that commences after onset of custody.• In those cases where a reasonable police officer

should have recognized that there was a problem.

Duty to Protect Property in Police Custody

From arrests, search warrants, found, seized, etc.Duty of Reasonable CareDuty Not to ConvertVarying “Bailments”• Seized Property = Highest Duty• Parking DWI car = Least Duty

Police Aid to Private Citizens

Assumption of Duty is key.

Upon assuming duty, your actions must be reasonable.

Officers can incur liability for any civil rights violation they may commit.

Examples: Landlord/tenant, repossessions, tresspassing

Statutory Duties

Negligence = Liability

Exception: Domestic violence

Officers have Statutory Immunity, but must act reasonably

Statutory Duties

Negligence = Liability

Exception: Domestic violence

Officers have Statutory Immunity, but must act reasonably

Negligence During Police Emergencies

Emergency Vehicle Operations- Largely Governed by Statute, but statutes only set up outside parameters

- Non-compliance is strong evidence of negligence!

- At most, statutes only grant limited authority to police.

Statutes specify conduct and equipment requirements.

Must operate with due regard for others, road conditions, your driving abilities, etc.

Internal department policies may be more restrictive than statutes.

- Limit discretion.- More confining.- Violation = liability

Statutes specify conduct and equipment requirements. (cont’d)

Must show strict compliance

- Must be actual emergency or . . . - Officer must reasonably believe emergency exists.- NOT going “code 3” can be reasonable, if appropriate under the circumstances.

A.R.S. § 28-624(D)

The provisions of this statute DO NOT relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor do its provisions protect the driver from the consequences of his/her reckless disregard for the safety of others.

Due Regard for Safety of OthersWas emergency real or apparent?Was pursuit negligently undertaken?Was pursuit negligently continued?Were other officers available?What was the time of day ?What were the traffic conditions? Did officers comply w/ department policy?

- Initiation- Continuation- Units involved- Citizen Observers- On board prisoners

Collisions Involving Pursued VehiclesAn officer can be held liable even if his vehicle was not physically involved.Negligence can still be shown if:

- Less dangerous alternatives were available at the time- Driver obviously had no intention of surrendering- Consequences were foreseeable

Intervening acts don’t always block liability!!!Remember . . . “Joint Tortfeaser” & “Comparative Negligence” doctrines may well apply.

Negligently Undertaken Chases

Seldom deemed negligent: Officers have right – if not duty – to apprehend.But officers can be found negligent if:

- Officer created pursuit- Was in plain clothes.- Used an unmarked car.- Drew weapon, but did not ID self as officer.