Whether it is federal, state, county or town/village municipal law enforcement agencies, liability claims against individual officers and police departments are becoming unfortunately increasingly common in our country.  Claims can be brought against law enforcement entities alleging violations of civil rights and reliance on 42 USC §1983 for claims such as false arrest or false imprisonment, malicious prosecution, excessive force or unlawful search and seizure.  Under 42 USC §1988, the prevailing party can be awarded attorney’s fees. Claims can also be brought in state court as long as a notice of claim is filed as a predicate foundation for suing a municipality. There is a three year statute of limitations.

Damages sought can be compensatory for pain, suffering, loss of enjoyment of life and reimbursement for medical costs or lost wages.  To defend a claim of false arrest/false imprisonment, the municipality must show that the law enforcement personnel had reasonable or probable cause to believe that a crime was committed or about to be committed.  A conviction of the crime is a related defense and that would also include obtaining an adjournment in contemplation of dismissal (ACD) as a disposition.

A claim of malicious prosecution alleges that the law enforcement agency initiated a prosecution against the plaintiff lacking probable cause to believe that the proceeding could succeed, and that the defendant acted with malice AND the prosecution of the case was terminated in the plaintiff’s favor.  The defense for the municipality would be obviously conviction or establishing probable cause and establishing lack of malice.

A claim of excessive force alleges simply that the law enforcement personnel used more force than was necessary.  The municipal defense should establish that the force used was objectively reasonable in light of the situation facing the officer.  There was also a defense of qualified immunity with the municipality in light of the situation facing the officer. There was also a defense of qualified immunity that the municipality can allege as well.  The court is to give careful attention to the facts and circumstances of each particular case such as the severity of the crime, whether the suspect posed an immediate threat to the safety of officers or others and whether the person was actively resisting arrest or attempting to evade arrest by flight.  It is important for the municipality to preserve all evidence including reports, audio video/dispatch records and police records, photographs such as mug shots or photos at the station, copies of all appearance tickets, certificates of conviction and obtaining testimony of criminal proceedings is helpful as well.  If there is an internal investigation against the police officers involved or possible discipline against them, the municipality may need to appoint separate counsel for the individuals while retaining counsel for the municipality itself. The individual officer may be liable for punitive damages if the behavior is deemed is egregious enough but no punitive damages can be recovered against a municipality.

Do you have more questions?

Contact George Collins

Phone: 716-856-1344, ext. 3004
Cell: 716-818-5621
Fax: 716-856-1369
E-mail: gcollins@bouvierlaw.com