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Civil Liability in Domestic and Sexual Violence Incidents Lessons Learned
What raises the level of professional standards lowers the chances for liability. What lowers the chances for liability raises the professional standards of the organization.
Liability is a good force if we learn how to use it to further our goals, which should be higher professional standards.
There is nothing you should do to manage liability that you should not already be doing as a good leader, manager, or supervisor.
Are we treating violence against women as a distraction?
Watson v. City of Kansas City, Kansas City Police 857 F. 2 d 690 - Court of Appeals, 10 th Circuit 1988 The plaintiff has presented evidence that police officers receive training in handling domestic violence situations, and that the training encourages officers to attempt to "defuse" the situation and to use arrest as a last resort. The plaintiff has presented evidence showing that out of 608 nondomestic assault cases in Kansas City, Kansas, from January 1, 1983, to September 8, 1983, where there was a known perpetrator, there were 186 arrests for an arrest rate of 31%. Out of 369 domestic assaults, there were only 69 arrests for a rate of 16%.
Legislative Intent Legislative intent in state and federal law is to develop laws and procedures affording the maximum protection to the victim of domestic violence. Laws are designed to protect the victims who are vulnerable to the ongoing domestic abuse in their current relationship and to stop the violence at home.
Vernetta Cockerham vs The Town of Jonesville, North Carolina Police Department Internet Testimony of Vernetta Cockerham
Vernetta Cockerham vs The Town of Jonesville, North Carolina Police Department Officer Video Deposition
Action vs. Failure to Act Liability for Actions False arrests, illegal searches, excessive use of force, civil rights violations, etc. Liability for Failure to Act Police are accountable for inaction. Section Three, Handout #9
National Police Misconduct News. Feed Daily Recap 02 -12 -15 February 13, 2015 @ 4: 16 PM by Jonathan Blanks Here are the eight reports of police misconduct tracked for Thursday, February 12, 2015: Memphis, Tennessee: An officer was arrested for DUI after causing accident that caused two cars to flip over. Remarkably, no injuries were reported. ow. ly/IWhv. D Webb, Alabama: An officer was arrested for domestic violence. ow. ly/IWh. YH Flower Mound, Texas: An officer was arrested and charged with felony DWI. She was driving 77 mph in a 35 mph zone with her 6 -yr-old in front seat. ow. ly/IWi. TE Myrtle Beach, South Carolina: An officer was charged with DUI and an open container violation after crashing his truck into a ditch http: //www. policemisconduct. net/
U. S. Supreme Court TENNESSEE v. GARNER, 471 U. S. 1 (1985) 471 U. S. 1 This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. (1974) Justice White
Jury awards $1. 1 million to slain Federal Way woman's estate By JACINDA HOWARD Federal Way Mirror Reporter Dec 23 2010 A jury found the Federal Way Police Department negligent in enforcing a 2008 anti-harassment protection order issued to Chan Ok Kim, who murdered his live-in girlfriend, Baerbel Roznowski, hours after police served the order. The jury ruled unanimously Dec. 22 that the department was negligent in enforcing the order. It ruled 10 -2 that the negligence caused the May 3, 2008, death of Roznowski, 66. The civil suit was brought by Roznowski's daughters, Carola Washburn and Janet Loh, both of California, in May 2009. The jury awarded Roznowski's estate $1. 1 million.
Action vs. Inaction Policy Administration Training Discipline
Policy? “No law book, no lawyer, no judge can really tell the police officer on the beat how to exercise this discretion perfectly in every one of the thousands of different situations that can arise in the hour-to-hour work of the police officer. Yet we must recognize that we need not choose between no guidelines at all and perfect guidelines. There must be some guidance by way of basic concepts that will assist the officers in these circumstances. ” - Chief Justice Warren Burger
Officer Responsibility Public Duty Doctrine: shields a public employee from suits for injuries that are caused by a public employee’s breach of duty owed to the public at large. States that officers do not owe a specific duty of care to a specific individual , but rather a general duty of care to the public at large.
“Special Relationships” States recognize an exception to the Public Duty Doctrine where a special relationship exists between a person and a public employee which gives rise to a “special duty” that is more particular than the duty owed to the public at large.
Wallace v. City of Los Angeles (1993) 12 Cal. App. 4 th 1385. In that case, a young woman witnessed a murder. The investigating police detective obtained a written pre-trial statement from her and her identity as a witness was made known. She received threatening phone calls and told the detective that she feared the defendant. The detective said he would relocate her if the threats continued and he promised to alert her if she was in danger. In summary, he minimized the danger to her even though he knew, but did not tell the witness, that the defendant was a suspect in several other murder cases and had threatened witnesses in the past. A few days before trial the witness was murdered. The court of appeal found (1) a special relationship was created when the detective enlisted the young woman as a witness which (2) required him to warn her of the unforeseen dangers she faced and (3) he was not entitled to immunity for his actions.
Department/Officer Liability Are we creating liability failing to honor express or implied promises to provide warnings or protection; making statements which minimize the actual peril faced by the victim or witness who then detrimentally relies on such statements; placing an unprotected victim or witness in close proximity to someone who poses a foreseeable threat to that victim or witness; requesting that a citizen perform an official function which involves a foreseeable risk; and seeking out and presenting a person as a prosecution witness against a defendant who is known to threaten witnesses.
Qualified Immunity Qualified immunity is an affirmative defense that shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does "not violate clearly established statutory or constitutional rights of which a reasonable person would have known”
“Special Relationship” Exception to the Public Duty Doctrine Under the following circumstances, police owe a duty to protect: Officers have created or assumed a custodial relationship toward a person; Officers are aware of a specific risk of harm to a person; Officers affirmatively place a person in a position of danger; ( Wallace v. LAPD) or Officers have affirmatively committed themselves to the protection of a person (i. e. , an order of protection). Section Three, Handout #4
Public Duty Doctrine (745 ILCS 10/4 -102) (from Ch. 85, par. 4 -102) Sec. 4 -102. Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals. This immunity is not waived by a contract for private security service, but cannot be transferred to any non-public entity or employee. (Source: P. A. 84 -1431. )
Wilson v. Joliet - 2004 On July 20, 2004, Margaret Wilson called the Joliet police department on multiple occasions reporting that her husband, David Wilson, had repeatedly threatened her with physical harm and mentally abused her by verbally reminding her of the presence of guns in the house. Additionally, Margaret flagged down a Joliet police officer, advised him of the abuse, and asked for assistance. Joliet police officers responded to Margaret's calls numerous times during the hours before her death. However, each time they left her home without investigation or assistance to Margaret. Furthermore, defendant police officers were told that there weapons in the home, and despite being given unfettered access to the home, they chose not to investigate the presence of those weapons. In the early morning hours of July 21, 2004, David shot and killed Margaret in their home.
Masse v. Thompson Sheriff pays for failing to arrest abusive husband DOMESTIC VIOLENCE The children of a woman killed by her abusive husband were awarded $358, 000 on Feb. 27 in a case they brought against a county sheriff's department. Sheriff Richard Thompson and his deputies visited the home of Ray and Vickie Doggett several times between 1993 and 1997 on domestic violence calls. On one visit, Ray Doggett held a gun to his wife's head. Yet the sheriff did not arrest him, confiscate the gun or inform Vickie Doggett how she and her three sons could escape the abuse. In 1997, Doggett shot his wife and then himself. The children claimed that the state law required the sheriff's department to arrest Ray and tell Vickie her options. Massee v. Thompson, No. DV 0017 [Broadwater Co. , Montana. , Dist. Ct. ].
Moore v. Green 2006 On April 15, 2002, Ronyale White obtained an emergency order of protection against her husband, Louis Drexel. On May 3, 2002, White telephoned "911" at 11: 40 p. m. to request police assistance because Drexel had entered her home. White told the operator that Drexel was violating the order of protection and that he owned a gun. The operator told White to watch for the police. An emergency dispatcher then contacted Chicago police officers Christopher Green and Donald Cornelius in their beat car. After the dispatcher advised the officers of White's situation and gave them her address and Drexel's description, one of the officers responded "10 -4. " That call concluded at 11: 43 p. m. Witnesses saw the officers arrive and wait briefly in their car at White's home, then depart without assisting her. Five minutes later, Drexel shot and killed White.
Statutory Immunity “a law enforcement officer shall not be held liable in any civil action for an arrest based upon pc, enforcement in good faith of a court order, or any other action or omission in good faith…arising from an alleged dv incident. ”
Causes of Action Plaintiff’s Theory of Suit-Federal and State Federal level : Basis-civil right’s violation Theory- violation of oath State level: Basis- negligence Theory- failure to maintain professional standards of care
Consent Decree Watson v. Dallas – 1987 US District Court of Northern Texas – Failure to Protect – Domestic Violence Procedures Civil Rights Consent Decree Los Angeles Police Department - 2001 Rampart Area Corruption Incident New Orleans Police Department – 2012 US DOJ – “NOPD agrees to develop and implement clear policies and procedures concerning its response to sex assault” Steubenville, Ohio – 1997 United States District Court for the Southern District of Ohio - Domestic violence response and investigation, including community resources
Four Bridges Principle Plaintiff’s attorney must show the following to have standing in court: Duty Failure to perform Loss or injury Causal tie between loss and failure to perform
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______ No. 09 -2210 _______ SARA R. REEDY, Appellant v. FRANK S. EVANSON, individually and in his official capacity as a Police Officer of the Township of Cranberry; STEVE MANNELL, individually and his official capacity as the Public Safety Director of the Township of Cranberry; KEVIN MEYER, individually and in his official capacity as a Police Officer of the Township of Cranberry
Reedy v. Township of Cranberry United States Court of Appeals for the Third Circuit (Third Circuit) held, among other things, that a police officer may be held individually liable when he acts unreasonably and violates a victim's 4 th Amendment rights In addition, summary judgment on Evanson’s defense of qualified immunity cannot stand.
Reedy v. Township of Cranberry "no reasonably competent officer would have concluded that a warrant should issue" when it did for her arrest for making a false report of the rape, for theft, and for receiving stolen property The Third Circuit held that Evanson's warrantless search of Reedy's blood for drug use, without her consent, violated her 4 th Amendment right.
Officer Discretion and Immunity Nearing v. Weaver Citation. 295 Or. 702, 670 P. 2 d 137 (1983) The Oregon Supreme Court held that: Police Officers who knowingly fail to enforce a judicial order are potentially liable over defenses of officer discretion and immunity. An officer is not engaged in a “discretionary function or duty” whenever he or she must evaluate and act upon factual judgment. Section Three, Handout #3
Nearing vs. Weaver Plaintiff’s attack Went to Oregon Supreme Court in 1980 Was a class action suit brought by victims with valid orders for protection. Oregon state law set forth mandatory arrest for violations of orders for protection. Plaintiff claimed that the department knowingly failed to obey mandatory arrest provisions of the law. Officers were issuing citations in lieu of arresting subjects.
Court findings. . . Court found that department neglected a specific duty to enforce a court order. Court found a special relationship to exist between those who held valid orders for protection and police. Court said that mandatory arrest laws negate any discretion on part of officers. Court found policy of arrest avoidance where husbands told to leave and cool down rather than be arrested.
The Tennessee Supreme Court said the order of protection created a “special duty” for law enforcement officers to protect Mary Matthews and her property from her estranged husband.
Failure to Respond to Calls for Assistance Thurman v. City of Torrington Despite an order of protection, police refused to assist the victim. One officer stood by and watched as she was beaten by her estranged husband. Sorichetti v. City of New York Despite evidence that a child was in danger during an overdue visitation, police failed to investigate -- the father had stabbed the child with a knife and an ice pick, and he had tried to saw off her leg. In both cases, the courts held that a special relationship existed. Section Three, Handout #5
Actionable Conduct under 42 USC 1983 excessive force and brutality illegal search and seizure discriminatory or retaliatory prosecution misuse of deadly force denial of medical attention failure to provide police protection
Plaintiff’s attack. . . Thurman vs. Torrington 1983 USCA Action. 2. 3 million awarded to Tracy Thurman. She alleged police discriminatorily refused to respond to domestic violence. In trial testimony, Tracy said she called police 50 times. Chief said, “No, she only called 25 times!”
Court findings (cont. ) Court found that police had made a policy decision to treat spousal beatings with less priority than non-familial beatings. That policy violated 14 th Amendment equal protection guarantees. 24 officers named in the suit.
Failure to Arrest or Restrain Jones v. County of Herkimer 1966 The court found that a special relationship had been created when police failed to protect the victim from the son of a county judge. Baker v. City of New York 1966 The court found that a special relationship existed when a probation officer ordered the victim to share a waiting room with her husband (a police officer), who shot her. Section Three, Handout #6
A Duty to Protect has been Assumed Zibbon v. Town of Cheektowaga Police promised the victim full protection from her exboyfriend, then withdrew the protection by mistake. The court held that a special relationship had been created. Morgan v. County of Yuba Police promised to contact the victim if and when the perpetrator was released on bail, but failed to warn her. The court held that a special relationship had been created. Section Three, Handout #7
Simpson v. City of Miami “Duty of Care” On March 24, 1994 the suspect, Hurd, while under a domestic violence restraining order visited the victim and threatened to kill her and left the residence. Ms. Simpson called the police. There was a documented history of violence at the residence. Dispatched confirmed the order and sent a patrol unit. Hurd was located and placed under arrest. He plead with officer and was released. The next day Hurd returned and shot Simpson to death. Section Three, Handout #8
Simpson v. City of Miami “Duty of Care” Florida Supreme Court finding A special relationship existed between Ms. Simpson and the department by virtue of the injunction issued by the court for her protection …. If law enforcement agencies and personnel are shielded from liability for failing to carry out the very protections established by the legislature, then the domestic violence injunction legislation is virtually meaningless and does not offer domestic violence victims any real protection. If the domestic violence injunction is to have any real impact in preventing tragedies such as the one in this case, then violators must be arrested, without any police discretion on the matter because the police force is the only body with the capability and the duty to address these violations when they occur. Section Three, Handout #8
Garrett v. Shelby County Sheriff’s Department (Memphis, Tennessee 1993) “Failure to Protect” September 1990, Deputy Clyde Garrett shot and killed his three year old daughter, and critically wounded his wife by shooting her in the face and then shot his step-son. Mrs. Garrett sued the department for failure to protect and was awarded $1. 4 million. She had made several complaints including an incident where he fired a gun into her home after they had separated. Section Three, Handout #8
Lawsuits for Failing to Adequately Train Officers In City of Canton, Ohio v. Harris (109 S. Ct. 1197 (1989), the U. S. Supreme Court decided that liability can be established, based on inadequate police training, where it can be shown that municipal policymakers exhibited deliberate indifference to the constitutional rights of citizens.
Lawsuits for Failing to Adequately Train Officers cont. In Ricketts v. Columbia (No. 90 -4099 -CVC 66 BA (U. S. Dist. Ct. W. D. Mo. ), evidence was presented showing that the police had been trained that it was permissible to respond more minimally to domestic violence calls than non-domestic calls.
Six Most Common Areas of Officer Liability Failure to take proper actions to protect Failure to appropriately enforce a court order protecting a victim of domestic violence Failure to respond at all or in a timely manner Failure to provide information to a victim as required by law Arresting a citizen without establishing probable cause Exhibiting a pattern of differential treatment or application of the law to domestic violence cases
Reducing Potential Exposure to Lawsuits Review the department’s current domestic violence response policy and eliminate illegal or inappropriate portions. Adopt a legal and appropriate policy, always making sure domestic violence is treated the same way as any other crime.
Reducing Potential Exposure to Lawsuits – Failure to Train To avoid lawsuits managers must: Develop a training curriculum which evolves every aspect of policing and carefully document the training of all officers. Assess the training by testing officers afterwards or by monitoring the in-the-field performance evaluations. Identify performance problems and address them promptly. Refresher training is a good preventative measure. IACP – Julie Risher, Public Safety Attorney – July 2001
Reducing Potential Exposure to Lawsuits Monitor policy compliance. Review officers’ actions and reports and provide additional training and discipline, if necessary, for officers who fail to follow the policy. Provide on-going training to all officers and document the content of the training.
Reducing Potential Exposure to Lawsuits Learn the relevant laws, paying close attention to state laws and civil rights cases. Review legislation, watch for changes in the law and communicate them immediately through policy and procedure changes.
Reducing Potential Exposure to Lawsuits Build a strong data collection and analysis system. Document the number of domestic violence arrests and homicides and compare those to non-family violence statistics.
Build a Strong Data Collection System Do you know? What percentage of your calls for service were “domestic violence” calls? What percentage of your domestic violence calls resulted in arrest? What percentage of your domestic violence calls were dual arrests?
Build a Strong Data Collection System Do you know? Are there periods of time when family violence calls are most frequent? Which commands/precincts/districts have the highest/lowest percentage of arrest compared to their total number of domestic violence calls?
Build a Strong Data Collection System Do you know? What percentage of your domestic violence calls had a crime report or incident report prepared? What percentage of your homicides were domestic violence related? What percentage of your felony assaults were domestic violence related?
Build a Strong Data Collection System Do you know? What percentage of your misdemeanor assaults were domestic violence related? How many households/families have called the police three or more times in the last twelve months?
“Pat Gallagher is the Lewis and Clark of police risk management. ” - Lou Reiter, deputy chief (ret) LAPD Publisher - Lu. com ISBN 978 -1 -4834 -1779 -0