University of Indianapolis

1
University of Indianapolis

• Police Administration
• CRIM 340-50
• Police Misconduct Remedies
• Thomas N. Davidson, J.D.
• www.thinblueline.ws

2
Police Ethics and Misconduct

• Police have a property interest in their jobs.
• Cannot be terminated or disciplined without due
  process.

3
Police Ethics and Misconduct

• Internal Investigation
• Founded
• Unfounded
• Exonerated
• Not determined.

4
Garrity Rule

• By invoking the Garrity rule, the officer is
  invoking his or her right against self
  incrimination. Any statements made after invoking
  Garrity, may only be used for department
  investigation purposes and not for criminal
  prosecution purposes. The Garrity Rule stems from
  the court case Garrity v. New Jersey, 385 U.S.
  493 (1967), which was decided in 1966 by the
  United States Supreme Court. It was a traffic
  ticket fixing case.  

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Garrity Warning
6
Bifurcated Investigation
Criminal Investigation Interview
Internal Investigation
Internal Investigation Interview
Criminal Investigation
7
Is drug testing employees legal?

• For private employers there is no 4th Amendment
  or other constitutional issues.
• Look to your state law for prohibition or
  regulation on drug testing.
• Government employers must be cognizant of USC
  issues
• Articulable suspicion
• Safety sensitive employees
• Watch out for tort traps such as false
  imprisonment, IIED, defamation, wrongful
  termination.

8
Last chance agreements

• In general, last chance agreements are
  probationary contracts negotiated by an employer
  with an employee who faces termination or serious
  discipline. The employer agrees not to execute
  the discipline, and the employee promises to
  rehabilitate his or her performance in definite
  ways. Last chance agreements usually contain a
  clause by which the employee waives his or her
  right to any administrative disciplinary appeal
  if the employee violates the agreement within a
  distinct timeframe.

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Enforceability of last chance agreements

• The courts have found 1) employees may
  voluntarily waive their statutory rights 2) the
  fact that an employee may face serious discipline
  or termination does not nullify the voluntariness
  of the agreement 3) employers may not illegally
  discriminate, negotiate in bad faith, abuse
  discretion or engage in prohibited personnel
  practices 4) employers must inform the employee
  of the alternatives and consequences of the
  agreement and not misstate the employees options
  5) to avoid findings of unfair arbitrary and
  capricious agreements, the agreements should not
  be open ended (usually one year) and be directed
  towards correcting the employees specific
  behaviors, conduct and derivative unsatisfactory
  performance and 6) there must be review for
  determining whether the agreement was breached by
  the employee

10
Enforceability of last chance agreements

• The courts have found 1) employees may
  voluntarily waive their statutory rights 2) the
  fact that an employee may face serious discipline
  or termination does not nullify the voluntariness
  of the agreement 3) employers may not illegally
  discriminate, negotiate in bad faith, abuse
  discretion or engage in prohibited personnel
  practices 4) employers must inform the employee
  of the alternatives and consequences of the
  agreement and not misstate the employees options
  5) to avoid findings of unfair arbitrary and
  capricious agreements, the agreements should not
  be open ended (usually one year) and be directed
  towards correcting the employees specific
  behaviors, conduct and derivative unsatisfactory
  performance and 6) there must be review for
  determining whether the agreement was breached by
  the employee

11
42 USCA 1983 Liability
12
Section 1983 Actions

• Cannot be filed against the state, but it can
  against its employees.
• Cannot be filed against the Federal Government.
  Claims against the federal government employees
  are brought under the Federal Tort Claims Act (
  28 USCA 1346 2671 -2680). These are often
  called Bivens actions named for a USC ruling.

13
Section1983 Elements

• Person (individual officers and local
  government entities may be sued) acting under -
• Color of Law (misused powers under auspices of
  state local law) -
• Willful or wanton (negligence is not enough)
  action that -
• Violated US constitutional right or right
  protected under federal law of a person
  (corporations are not protected).

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Section 1983 Immunity

• States are not persons under 1983.
• Sovereign immunity cannot file a lawsuit in
  federal court against the state without its
  permission (11th Amendment).
• Qualified immunity Officials cannot be liable
  for performing discretionary functions
  (ministerial duties not covered).

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Qualified Immunity

• Decision is made
• No clearly established constitutional right
  exists
• The right was clearly established, but the
  officer could not reasonably have known that his
  conduct was violating that right.

16
Objective Reasonableness Test

• Claims of excessive use of force by police invoke
  protections under the 4th Amendment.
• The question is decided by whether the officers
  actions are objectively reasonable in light of
  the facts and circumstances confronting them,
  without regard to motivation. An allowance must
  be made for the fact that officers are forced to
  make split-second decisions.
• Graham v. Connor, 490 US 386 (1989).

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Tennessee v. Garner

• Deadly force by police is justified
• To protect/defend oneself or a third party from
  the threat of immanent serious bodily injury or
  death
• To interdict a forcible felony
• To apprehend a fleeing forcible felon once less
  lethal means of capture have failed, and suspect
  will get away if you dont (provide a warning
  whenever possible.).

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Use of Force Continuum
19
Lethal Event
20
Section 1983 Remedies

• Injunctive relief
• Money damages
• Punitive damages
• Attorney fees for prevailing party

21
State Tort Law

• Legal duty
• Breach of duty
• Proximate cause
• Injury
• Identifiable damages

22
Defenses Proof

• Contributory negligence (State of Indiana)
• Comparative negligence (Private and political
  subdivisions).
• Assumption of Risks.
• Proof by preponderance of the evidence.

23
Indiana State Tort Claims Act IC 34-13-3

• Notice of tort claim 270 days for state 180 days
  for political subdivision.
• IC 34-13-3-3 Immunity of governmental entity or
  employee The performance of a discretionary
  function The adoption and enforcement of or
  failure to adopt or enforce a law, unless the act
  of enforcement constitutes false arrest or false
  imprisonment and an act or omission performed in
  good faith and without malice under the apparent
  authority of a statute which is invalid if the
  employee would not have been liable had the
  statute been valid.
• The Act provides for 23 express instances of
  immunity.

24
Liability Cases

• Quakenbush v. Lackey, 622 N.E.2d 1284 (1993)
  (Overruling Seymour Natl Bank v. State, 422
  N.E.2d 1223 (1981) the Public Private duty
  test-officer owes private duty while responding
  to calls.)
• Minks v. Pina, 709 N.E.2d 379 (Ind. Ct. App.
  1999).
• Conner v. State, 724 N.E.2d 1125 (2000)
  (dispensing with private-public duty test).

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Public v. Private Duty
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Special Relationship

• Abandoning assault victims when reoccurrence is
  likely.
• Abandoning children when parent is arrested.
• Assurances of protection.
• Knowledge, risk is foreseeable, police give
  direction, person changes their action to abide
  by the direction, and is harmed.

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Police Pursuits Section 1983

• County of Sacramento v. Lewis, 118 S.Ct. 1708
  (1998). Section 1983 USC case.
• Reiterated that negligence is not enough, conduct
  causing the harm must be deliberate, willful, or
  wonton.
• 4th Amendment objective reasonableness test did
  not apply since chase was not a seizure.
• Chase with no intent to harm does not violate due
  process.

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Police Pursuits - Torts

• Reason for the pursuit.
• Type of pursuing car and training of driver
  (unmarked?).
• Urban/Rural.
• Hills, sharp corners.
• Traffic pedestrians present?
• Construction areas.
• Intersections.
• Schools.
• Likelihood of apprehension at another time.
• Weather.
• Speeds involved and recklessness of offender.
• Pursuer's knowledge of location.
• Adequate communication and equipment.
• Alternative methods tried, available.

29
Pursuit Management

• Preemption means stopping a vehicle's opportunity
  to flee.
• Control means measures designed to make continued
  apprehension efforts safer.
• Termination means measures designed to bring a
  fleeing vehicle to a stop.

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Tactical Pursuit Intervention

• Stop sticks - tire deflation.
• Pursuit intervention technique (spin out).
• Boxing in.
• Ramming (Use of force).
• Channelization.
• Barricades.

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Pursuit Policies

• Severely restrict pursuits
• Set standards with supervisory control
• Minimal standards.

32
Pursuit Phases

• Pursuit Phases 1983 Study-5 stages that precede
  a pursuit.
• Commission of a violation or crime.
• Observation by the police.
• Suspect becomes aware of the police.
• Violator deciding to flee.
• Police deciding to chase.

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California Highway Patrol Pursuit Phases

• Pre-pursuit Phase - the time between the decision
  to stop and the officer's recognition that the
  suspect is going to flee. What actions can the
  officer take to reduce the risk of the pursuit
  taking place?
• Communication Phase - the time between the start
  of chase and arrival of back up officers.
• Arrival of Resources Phase - the period when
  assisting personnel and equipment arrive to
  attempt to terminate the pursuit.
• Post-pursuit Phase - the time after the pursuit
  ends and actions by the police after the chase
  ends.

34
Limitations on Liability

• IC 34-13-3-4 (a) The combined aggregate
  liability of all governmental entities and of all
  public employees, acting within the scope of
  their employment and not excluded from liability
  under gt section 3 of this chapter, does not
  exceed
• (1) for injury to or death of one (1) person in
  any one (1) occurrence
• (A) three hundred thousand dollars (300,000) for
  a cause of action that accrues before January 1,
  2006
• (B) five hundred thousand dollars (500,000) for
  a cause of action that accrues on or after
  January 1, 2006, and before January 1, 2008 or
• (C) seven hundred thousand dollars (700,000) for
  a cause of action that accrues on or after
  January 1, 2008 and
• (2) for injury to or death of all persons in that
  occurrence, five million dollars (5,000,000).
• (b) A governmental entity or an employee of a
  governmental entity acting within the scope of
  employment is not liable for punitive damages.

35
IC 36-8-16.5-46 Immunity 911 Wireless

• Notwithstanding any other law, a political
  subdivision (among others) is not liable for
  damages in a civil action or subject to criminal
  prosecution resulting from death, injury, or loss
  to persons or property incurred by any person in
  connection with establishing, developing,
  implementing, maintaining, operating, and
  providing enhanced wireless 911 service in
  compliance with the requirements established by
  the FCC order and rules adopted under the FCC
  order, except in the case of willful or wanton
  misconduct.

36
Remedies

• Criminal sanctions fines, imprisonment,
  probation.
• Civil sanctions money damages, restitution,
  retraining.
• Internal sanctions counseling, transfer,
  suspension, demotion, termination.

37
Who pays?

• IC 34-13-4-1 Personal civil liability under civil
  rights laws of employee acting within scope of
  employment.
• Government entity had an opportunity to defend.
• Non-criminal act.
• Consistent with public policy the agency will pay
  the judgment and costs.

38
Risk Management

• Job task analysis screening, training, testing.
• Job descriptions performance evaluations.
• Risk control program.
• Policy development.
• Risk reduction strategies avoidance,
  prevention, reduction, transfer.

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Stress
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Eustress

• Eustress can be defined as a pleasant or curative
  stress. We can't always avoid stress, in fact,
  sometimes we don't want to. Often, it is
  controlled stress that gives us our competitive
  edge in performance related activities like
  athletics, giving a speech, or acting.

41
Distress

• Distress is an unpleasant emotional experience of
  a psychological (cognitive, behavioral,
  emotional), social, and/or spiritual nature that
  interferes with the ability to cope effectively.
  It exists along a continuum that extends from
  normal distress (fear, worry, sadness) to
  disabling distress (depression, anxiety, panic,
  social isolation, spiritual crisis)

42
Stress Acute Stress

• Acute stress is the most common form of stress.
  It comes from demands and pressures of the recent
  past and anticipated demands and pressures of the
  near future. Acute stress is thrilling and
  exciting in small doses, but too much is
  exhausting. Overdoing on short-term stress can
  lead to psychological distress, tension
  headaches, upset stomach, and other symptoms.
  American Psychological Association

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Episodic Acute Stress

• There are those who suffer acute stress
  frequently. They're always in a rush, but always
  late. They take on too much, have too many irons
  in the fire, and can't organize the slew of
  self-inflicted demands and pressures clamoring
  for their attention. They seem perpetually in the
  clutches of acute stress. The symptoms of
  episodic acute stress are extended over arousal
  persistent tension headaches, migraines,
  hypertension, chest pain, and heart disease.
  Treating episodic acute stress requires
  intervention on a number of levels, generally
  requiring professional help, which may take many
  months. American Psychological Association

44
Chronic Stress

• Grinding stress that wears people away day after
  day, year after year. Chronic stress destroys
  bodies, minds and lives. It wreaks havoc through
  long-term attrition. Often found in people who
  live in poverty, dysfunctional families, an
  unhappy marriage, or in a despised job. Chronic
  stress kills through suicide, violence, heart
  attack, stroke, and, perhaps, even cancer.
  Because physical and mental resources are
  depleted through long-term attrition, the
  symptoms of chronic stress are difficult to treat
  and may require extended treatment and stress
  management. American Psychological Association

45
Types of Stress
Physical stress involves stressors in the
environment - factors such as extremes in
temperature, environmental pollution, constant
noise, or electric shock. Researchers also
categorize physiological factors as physical
stress. Examples include injury, surgery,
hypoglycemia, prolonged exercise, or an
inadequate supply of oxygen. Psychological
stress stems from the way we feel, the attitudes
we have, and the way we react toward anything
that is threatening us, whether the threat is
real or imagined. As in the example of the roller
coaster, one person may react calmly, while
another may become extremely stressed.
Psychosocial stress involves stressors from
interpersonal relationships, arguments or
conflicts with family members, neighbors,
employers, friends, or other people around us.
http//www.fsis.usda.gov/PDF/PHVs1-Wellness.pdf
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General Adaptation Syndrome

• 3 stages of psychological reaction to stress.
• Alarm.
• Resistance.
• Exhaustion.

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Stress Personality Types

• Type A Personality
• Constant stress
• Demanding
• Urgency
• Intense
• Type B Personality
• Easy going
• Less rushed
• Philosophical
• Separate work from leisure

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Workaholic

• Similar to Type A
• Addiction to work
• Agitated when not working
• Buck the system
• Perfectionist
• Prefer labor to leisure

49
Police Job Stress

• Stressors in law enforcement have been identified
  in a variety of ways
• Organizational practices
• Criminal justice practices
• Public practices
• Police work itself

50
Relationship Between Stress and Performance
http//www.fsis.usda.gov/PDF/PHVs1-Wellness.pdf
51
http//www.fsis.usda.gov/PDF/PHVs1-Wellness.pdf
52
Responses to Stress Alcohol Abuse

• Signs of police alcohol abuse include
• Slipping away from duty for short periods
• Drinking at lunch or during breaks
• Red and bleary eyes
• Mood changes
• Reduced quality of work
• Absenteeism
• Loud talking
• Hangovers
• Hand tremors
• Punctuality and late to work

53
Responses to Stress Suicide

• Police work is an emotionally and physically
  dangerous job. Police officers continually face
  the effects of murder, violence, accidents and
  disasters. Rotating shifts, long hours and
  exposure to life's tragedies exact a heavy toll
  on police officers and their families. The
  results are disturbing high divorce rates,
  suicide, domestic violence, heart attacks,
  cancer, depression and alcoholism. Law
  enforcement, the media, and the public foster the
  myth that police officers can experience trauma
  and violence without suffering ill effects.
  However, when stressors are prolonged and
  overwhelming, an individual's ability to cope
  becomes difficult.

54
Police Suicide

• Suicide among police occurs at a greater rate
  than that of the general population. Studies
  suggest that the police commit suicide at a rate
  of 29 per 100,000 as compared to 12 per 100,000
  for the general population.
• Columbia University Record -- September 16, 1994
  -- Vol. 20, No. 2

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Police Suicide Risk Factors

• Feelings of hopelessness and helplessness lead to
  suicide.

1. Personal and financial problems for which the
officer feels there are no solutions2. Increase
in alcohol use3. Work-related problems4.
Divorce or break-up of a relationship5. Increase
in sick days6. Mood swings7. Depression8.
Recent death in the family9. Exposure to a
work-related trauma10. Use of deadly force
56
Police Suicide

• Typically, when police officers experience
  serious, long-term emotional problems that can
  lead to suicide, 2 reactions occur that hinder
  the helping process. 1st, everyone--from the
  affected officers to friends co-workers to the
  department's hierarchy--initially denies that a
  problem exists. 2nd, even when a problem
  eventually is acknowledged, the affected officers
  often resist seeking help for fear of losing
  their jobs, being demoted, or having their
  personal problems exposed for public ridicule.

57
Police Suicide Warning Signs

• Typically, multiple problems plague suicidal
  police officers, so supervisors should look for a
  cluster of warning signs.
• recent loss
• Sadness
• Frustration
• Disappointment
• Grief
• Alienation
• Depression /or mental anguish
• Loneliness
• Physical pain
• Mental illness.

58
Police Suicide Clues

• Suicide Ritual
• Giving away prized possessions
• Putting affairs in order
• Pre-paying burial expenses
• Veiled statements or threats
• Means (Usually their service handgun)
• Mood swing from depression to ambivalence or
  pragmatism

59
Police Suicide Intervention Prevention

• EAP
• Drug awareness and prevention programs
• Chaplain programs
• Training
• Officers
• Supervisors

60
Post-traumatic Stress

• Post-traumatic stress is defined as "...the
  development of characteristic symptoms following
  a psychologically distressing event that is
  outside the range of human experience. Symptoms
  are characterized by intrusive recollections,
  excessive stress arousal, withdrawal, numbing,
  and depression. The signs and symptoms must last
  more than 30 days for an individual to be
  diagnosed with PTSD. An estimated 4 to 10 percent
  of individuals who experience a critical incident
  will develop a full-fledged post-traumatic stress
  disorder.
• FBI Law Enforcement Bulletin

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Post-traumatic Stress

• Critical Incident debriefing.
• Discuss feelings, fears, and concerns with others
  involved.
• Accepting and understanding environment.
• Other public safety responders who have had
  earlier, similar experiences who give insight on
  what to expect down the road.
• EAP offered.