Police departments draft and implement policies and procedures to provide consistency and eliminate ambiguity in department practices. These are guidelines are for staff and officers to follow in a variety of different situations. Police policies and procedures may have the force of law, or be considered by a court or jury in determining whether an officer acted lawfully in the line of duty. Procedures related to employee actions can also be subject to legal scrutiny in some cases. A lack of policies on issues involving the community may result in unlawful and inconsistent police action. These adverse actions can create a negative reaction within the community, and open the police officers within the department to legal liability. Michael Lyman quoted Section 1983, “Every person under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the depravation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (pg. 270)
Basically, this means that police officers are prohibited from violating any person’s civil rights. Section 1983 is a tool for a citizen to use to sue another for a violation of civil rights. Some elements must be met in order to be subject to liability through Section 1983. First, he questionable liability or violator of Section 1983 must be a “person”. A police department, state agency, or other legal entity, cannot be subject to liability under the statute. Second, the liable “person” must have been acting under the color of authority when the accused violation took place. A police officer who unlawfully beats a suspect in the commission of an arrest would be acting under the color of law. Finally, the accuser does not have to prove that the “person” intended to deprive him/her of their Constitutional rights, but only that there was a deprivation.
For example, a subject who was beaten by a police officer can sue that officer for excessive force, without proving it was the officer’s intention to violate his rights, but only that the officer intended to beat him. In some cases an officer’s supervisor can be held liable because he/she is responsible for the negligence of that officer. This is known as vicarious liability, or “imputed negligence” (freedictionary.com). For example, a gang member who shoots and kills another person during a hold-up is responsible for the murder, but other gang members may be held vicariously liable for the same murder. There are several different types of defense for civil suits, and also persons who are immune to the liability in question. There are three types of immunity, they are: absolute immunity, quasi-judicial immunity, and qualified immunity.
Michael Lyman lists judges, prosecutors, and legislators, as those who enjoy absolute immunity during civil liability suits (Lyman pg. 272). Lyman also reminds us that police officers and witnesses can obtain absolute immunity while testifying during a criminal trial, but if found providing false testimony, may be charged with perjury. Persons within a department, performing his/her duties as assigned, during the alleged time of a Section 1983 violation, and not involved in the violation, obtain quasi-judicial immunity.
Quasi-judicial immunity is provided to prosecutors who are actively involved in the trial of a person. Qualified immunity is provided to federal law enforcement officials who are accused of violating laws that have not been clearly established. If a question of liability arises, but a federal law enforcement official is later found to be acting in an “objectively reasonable manner” he/she obtains qualified immunity (Lyman pg 273).
Vicarious Liability. (n.d.) West’s Encyclopedia of American Law, edition 2. (2008). Retrieved September 30 2012 from http://legal-dictionary.thefreedictionary.com/Vicarious+liability Lyman, Michael D (2010). The Police: An Introduction. New Jersey: Prentice Hall.
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