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Civil Liability in Criminal Justice

The increasing litigation against criminal justice practitioners in the United States poses a significant problem
for law enforcement and other personnel. Law enforcement and corrections professionals need to have a
working knowledge of both criminal law and the civil law process to ensure they are performing their duties
within the limits of the law. Civil Liability in Criminal Justice, 7th Edition, provides valuable information and
recommendations to current and future officers and correctional system employees, introducing them to civil
liability and federal law, as well as recommending strategies that can be taken to minimize risks.

Civil Liability in Criminal Justice is unique in its combination of applicable case law and related liability
research, while still providing an overview of current case law in high- liability areas. This new edition, a
valuable resource for enhancing student knowledge and practitioner job performance, is revised to include up-
to- date United States Supreme Court cases; liability trends on the use of force, arrest- related deaths, custodial
suicides in detention, and qualified immunity; outcomes of the Department of Justice’s application of Section
14141; additional context for liability issues; and extended coverage of collective bargaining and public
perception.

The text is suitable for undergraduate and graduate courses in Criminal Justice programs as well as for in-
service and academy training. Ross offers an engaging, accessible introduction to this aspect of the U.S.
criminal justice system.

Darrell L. Ross, Ph.D., is Professor and Department Head of Sociology, Anthropology, and Criminal Justice,
and Director of the Center for Applied Social Sciences (CASS) at Valdosta State University, USA. Ross worked
for the Michigan Department of Corrections as an officer, cell block supervisor of mentally impaired prisoners,
probation officer, and instructor in the training academy, and taught in the Police Academy at Ferris State
University as a certified instructor teaching subject control techniques, human factors, mechanics of arrest, and
responding to the mentally ill person. He served on the faculty of Western Illinois University and East Carolina
University. Ross has published five books, more than 95 articles, book chapters, and monographs, and has
provided expert witness services since 1987.

2

“Dr. Ross’s book teaches law enforcement agencies how to see operations through the lens of risk. Now for every training event or planned
operation we identify the risks and the control measures to counter them. The end result: we have seen a remarkable reduction in
consequences of legal liability, and better officer performance and perceived professionalism from the community.”—Jim A. Blocker, Chief of
Police, Battle Creek, Michigan

“Dr. Ross provides the ‘A to Z’ reference book for civil liability in a criminal justice setting, whether it be day to day policing or overseeing
offenders in correctional institutions. A practical, subject-by-subject guide, this book gives clear data and reasoning behind civil liability,
what drives it and how to mitigate it. The final chapter clearly sets out trends based on law and recent Court decisions. A must read, this
book should be in the hands of every American criminal justice executive.”—Jim Ferraris, Chief of Police, Woodburn, Oregon, Police
Department

“This text discusses complex concepts and principles in easily understood language. It is thoroughly researched and well organized. Readers
will learn duties and responsibilities that are owed to all and strategies to prevent harms and avoid or limit exposure to civil liability.”—
Andrew Fulkerson, J.D., Ph.D., Professor, Southeast Missouri State University; former judge and prosecuting attorney, State of Arkansas

3

Civil Liability in Criminal Justice
Seventh Edition

Darrell L. Ross

4

Seventh edition published 2018

by Routledge

711 Third Avenue, New York, NY 10017

and by Routledge

2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2018 Taylor & Francis

The right of Darrell L. Ross to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the

Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means,

now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission

in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation

without intent to infringe.

[First edition published by Anderson Publishing 2013]

[Sixth edition published by Routledge 2015]

Library of Congress Cataloging-in-Publication Data

Names: Ross, Darrell L. (Darrell Lee), 1951- author.

Title: Civil liability in criminal justice / Darrell L. Ross.

Description: Seventh edition. | New York, NY : Routledge, 2018. | Includes bibliographical

references and index.

Identifiers: LCCN 2017054161 (print) | LCCN 2017059362 (ebook) | ISBN 9781351062664

(master) | ISBN 9781138480513 (hardback) | ISBN 9780323356459 (pbk.) |

ISBN 9781351062664 (ebk)

Subjects: LCSH: Tort liability of police–United States. | Tort liability of criminal justice

personnel–United States.

Classification: LCC KF1307 (ebook) | LCC KF1307 .B37 2018 (print) | DDC

345.73/052–dc23

LC record available at https://lccn.loc.gov/2017054161

ISBN: 978-1-138-48051-3 (hbk)

ISBN: 978-0-323-35645-9 (pbk)

ISBN: 978-1-351-06266-4 (ebk)

Typeset in Frutiger and Utopia

by Servis Filmsetting Ltd, Stockport, Cheshire

Visit the e-resources: www.routledge.com/9780323356459

5

Contents

About the Author

Preface

Acknowledgements

1 Overview of Civil Liability

2 Foundations for Liability

3 Civil Liability Under State and Federal Tort Law

4 Civil Liability and Federal Law: Section 1983 Litigation

5 Defenses to Civil Litigation and Risk Management

6 Administrative and Supervisory Liability

7 Liability for Failure to Train

8 Operating Criminal Justice Agencies Under a Consent Decree

9 Personnel Issues and Liability

10 Use of Force in Law Enforcement and Corrections

11 Section 1983 and Correctional Liability Issues

12 Section 1983 Actions in Law Enforcement

13 Liability and Arrest-Related Deaths

14 Liability and Suicides in Detention

15 Conclusions: Shifting Directions in Civil Litigation

Table of Cases

Index

6

About the Author

Darrell L. Ross, Ph.D., is a Professor and Department Head of Sociology, Anthropology, and Criminal Justice,
and the Director of the Center for Applied Social Sciences (CASS) at Valdosta State University. Ross worked
for the Michigan Department of Corrections as an officer, cell block supervisor of mentally impaired prisoners,
probation officer, and instructor in the training academy. He also taught in the Police Academy at Ferris State
University as a certified instructor teaching subject control techniques, human factors, mechanics of arrest, and
responding to the mentally ill person. He served as the Director of the School of Law Enforcement and Justice
Administration at Western Illinois University and was a professor in the Criminal Justice Program at East
Carolina University.

Ross has published five books and more than 95 articles, book chapters, and monographs on the use of force,
stress, and human factors during use of force incidents, liability issues, officer-involved shootings, excited
delirium syndrome, prone restraint and asphyxiation, sudden arrest-related deaths, and custodial suicides. Ross
has provided technical assistance and consultation to local, county, state, federal, and private criminal justice
agencies nationally and internationally, as well as to various branches of the military. He regularly provides
training to line- level officers and administrators and makes presentations at national and international
conferences on officer- involved shootings, use of force issues, sudden arrest- related deaths, and custodial
deaths. Since 1987 Ross has provided expert witness services regarding these and other topics.

8

Preface

Civil litigation filed against criminal justice agencies is an increasing phenomenon. Due to the proliferation of
civil litigation against criminal justice agencies, professors and trainers can no longer just concentrate on the
criminal law. As a response, college courses and training have been developed to expose students and
practitioners to the civil liability process at the university, community college, and agency levels. This book has
been written in an attempt to provide information that will aid in better understanding the civil process.

Due to the nature of civil litigation today, students and practitioners must not only have a working
knowledge of the criminal law but also possess a firm grasp of the civil law process. The two systems have
distinct differences and implications. In contemporary society a criminal justice practitioner must know how to
function in both systems. Students must be aware that their actions as a practitioner will more than likely be
probed by a citizen or a prisoner plaintiff claiming that the practitioner’s actions or inactions deprived them of
their constitutional rights. Likewise, practitioners must be continually updated on judicial decisions that affect
their job performance. This edition of Civil Liability in Criminal Justice has been updated with 103 new cases,
including 26 new United States Supreme Court decisions. The text is written with the needs of college students,
academy recruits, veteran practitioners, administrators, and agency trainers in mind. Acquiring a complete
understanding of the distinctions of both systems will greatly benefit the reader.

The book can be a standalone text for a legal course or a supplement to an administrative course. The text
has not been written as legal advice, because only attorneys may provide such advice. Rather, the text provides
general information relative to the civil liability process that affects police and correctional situations.
Therefore the text has been structured to integrate United States Supreme Court decisions and to provide lower
court rulings in order to illustrate how different cases have been applied to police and correctional situations.
The text also integrates research on civil liability that underscores pertinent legal issues, liability trends and
patterns, policy and procedure issues, training issues, and individual officer and administrative responsibilities.
In this edition 25 new research studies that address varying aspects of civil liability and criminal justice
agencies have been added. Combining these features not only provides useful information in understanding a
court’s decision- making process, but also provides the reader with realistic examples and research on how
cases are applied at the criminal justice agency level.

9

Acknowledgements

While a book may be the work and dream of the author, many individuals assist in the final product. First I
would like to thank Michael (Mickey) Braswell, Ph.D., of Routledge Publishing for giving me the opportunity
to revise this edition of the text. His friendship, insights, patience, and suggestions greatly assisted me
throughout the course of updating the book.

The substance of the text would not have been fully completed without the influence of the following
individuals. Thanks to Robert L. Parsons, Ph.D., who encouraged me to pursue a Ph.D. years ago; his continued
guidance, advice, and strategies for working on civil cases have been immeasurable. A debt of gratitude is
owed him for sharing his knowledge in policing, use of force, and civil litigation.

Many thanks to the various civil litigators who successfully defend criminal justice officers and agencies in
civil litigation matters. Working with them on civil cases has greatly increased my knowledge of the civil
process. Their legal skills and talents illustrated during discovery, motion preparation, and in the courtroom are
unmatched and have enhanced my ability to write about the many civil liability issues facing criminal justice
practitioners.

Much appreciation goes to three civil liability scholars who may not be aware that their work and research
in civil liability has greatly influenced my interest in the subject for several years. Thanks to Professors
Rolando del Carmen, Victor Kappeler, and Michael Vaughn for their pioneering and continued research and
publication efforts in this area. These three individuals are, without question, leaders in criminal justice
regarding civil liability issues. Their work has been an inspiration to me to further research, write, and publish
on civil liability topics. Thanks for your work.

Many thanks go to the professors, students, and practitioners who have used the text in order to increase
their knowledge in this continually changing area of the law.

And last, but certainly not least, I would also like to thank my wife Judy and my daughter Gretchen for
understanding and supporting my commitment for endeavoring to continue this research.

10

1
Overview of Civil Liability

11

Overview

The intrusive nature of the duties that criminal justice personnel perform exposes them to higher degrees of
liability than other occupations. This is not to suggest that physicians, psychologists, social workers, therapists,
teachers, or administrators are unlikely to be the subject of a civil lawsuit. It is because criminal justice
practitioners restrict citizens’ and prisoners’ liberties and rights, and therefore are more likely to become
involved in litigation than members of other professions.

Among the many job functions that criminal justice personnel perform, responding appropriately to street-
and institution- level situations is paramount. Criminal justice personnel must also exercise a high degree of
skill in using their authority and discretion when implementing department policy and enforcing the law.
Legal actions against law enforcement officers frequently arise out of situations in which they have restricted
the rights of citizens or prisoners. Other litigation may result from allegations of failing to perform legally
assigned duties, performing duties in a negligent manner, misusing authority, using excessive force, or
intentionally depriving a prisoner or other person of his or her constitutional rights.

Filing a civil lawsuit in the United States has become all too common since the 1970s. American society has
become highly litigious, resorting to filing civil lawsuits without hesitation. Litras and DeFrances (1999)
conducted a study for the Department of Justice on the overall trends of 500,000 tort cases filed in the United
States during fiscal years 1996–1997. Civil cases arising out of the 75 largest counties were studied. Types of
claims ranged from personal injury actions, such as airplane accidents, assaults, libel and slander, and medical
malpractice, to motor vehicle accidents and product liability. Motor vehicle accident claims accounted for 20
percent of the cases, while product liability cases accounted for 15 percent and medical malpractice cases
accounted for eight percent. Plaintiffs won 45 percent of all cases filed; they were awarded damages in 86
percent of these cases, and punitive damages in 18 percent. The median award was $141,000. In 10 percent of
the cases the plaintiff was awarded more than $1 million, and in eight percent of the cases awards exceeded
$10 million. Approximately $2.7 billion was awarded in combined compensatory and punitive damages.

Cohen (2005) studied the trends in punitive damages awards in civil trials in the 75 largest counties in the
United States during 2001. He reported that slander (58 percent), intentional tort (36 percent), and false
arrest/imprisonment (26 percent) represent three of the most common categories in which punitive damages
are awarded. Of the 6,504 cases studied, the plaintiff was awarded punitive damages in six percent of the cases.
This percentage has remained stable since 1992. Juries are more likely to grant punitive damages than judges.
In one- half of the verdicts, the plaintiff was awarded $50,000 or more, in 12 percent $1 million was awarded,
and in one percent $10 million was awarded. Punitive damages exceeded compensatory damages in 43 percent
of the cases. Medium and maximum ranges of punitive damages were reported on the three common
categories: intentional torts ranged from $16,000 to $4.5 million; slander ranged from $77,000 to $700,000; and
false arrest/imprisonment ranged from $8,000 to $100,000.

With the most available figures available, Kyckelhahn and Cohen (2008) performed an assessment of the
trends in civil litigation in federal district courts and the outcomes of civil rights disputes from 1990 to 2006.
They reported that a significant reason for the variance of trends in civil litigation is the expansion of civil
rights law with the passage of the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991. The
Civil Rights Act of 1991 amended several federal employment discrimination laws. The Act also provided for
compensatory and punitive damages to be awarded, and expanded the use of jury trials.

In the 17- year assessment, Kyckelhahn and Cohen reported that overall civil rights cases filed in federal
district courts more than doubled during the 1990s, then began to decline in the early 2000s, and from 2003 to
2006 filings in federal district courts decreased by approximately 20 percent. From 1990 to 2006 the percent of
civil rights claims concluded by trial declined from eight to three percent. From 1990 to 2006 about nine out of
10 civil rights filings involved disputes between private parties. The trend in filing private- party disputes
emerged with about 16,300 cases filed in 1990, increased to a peak of 40,400 in 1997, and declined to 30,400 cases
in 2006.

In 1990, jury and bench trials each accounted for 50 percent of all civil rights trials, but by 2006 jury trials
accounted for 87 percent of civil rights trials held in federal district courts. During the reporting period,

12

employment discrimination accounted for about half of all civil rights filings in federal district courts, but
filings began to decline in 2004. The percentage of plaintiffs who won at trial amounted to about 30 percent.
From 2000 to 2006 the median damages award for prevailing plaintiffs ranged from $114,000 to $154,500. The
combined 2000 to 2006 median jury award was $146,125, while the median bench award was $71,500. The
period from filing a civil rights suit to resolution in federal district courts took, on average, about 10 months.

Further, Lanton and Cohen (2008) examined the dispositions of civil bench and jury trials in state courts in
2005. They assessed 26,950 disposed cases, which account for a small percentage of the 7.4 million civil claims
filed in state courts around the country. They reported on nine litigated categories and found that the plaintiff
prevailed in 56 percent of the filings, that plaintiffs were awarded punitive damages in five percent, and the
median damage award amounted to $28,000.

Plaintiffs were more likely to prevail in claims involving motor vehicles, animal attacks, and employment
discrimination, and less likely to prevail in claims of false arrest/imprisonment and product liability, to
mention only a few. High combined compensatory and punitive awards of near or more than $100,000 included
premises liability, employment discrimination, medical malpractice, and asbestos. More than 60 percent of the
plaintiff winners were granted final monetary awards of $50,000 or less. A jury decided 90 percent of the
personal tort claims, while judges decided about 70 percent of business- related civil trials (contracts and real
property) in 2005.

Moreover, Cohen and Harbacek (2011) examined punitive damages awards in state courts during 2005. As
discussed in Chapter 2, tort claims such as assault and battery are litigated in state courts.

Compensatory and punitive damages may be awarded to the prevailing plaintiff. Cohen and Harbacek found
that, in 25,000 tort claims, 12 percent of the plaintiffs sought punitive damages and were awarded in five
percent. Of these awards, 30 percent were awarded about $64,000 and 13 percent were awarded punitive
damages of $1 million or more. The researchers also reported that punitive damages are more likely to be
awarded in assault and battery, slander, or libel cases, which have elements of willful or intentional behavior
that would support a punitive damages request.

Criminal justice agencies and personnel are also vulnerable and easy targets for litigation. During the 1980s
and 1990s there were unfortunately a number of high- profile civil liability cases that brought to the forefront
the problem of police and correctional officer misconduct nationally. The City of Philadelphia, Pennsylvania,
paid out approximately $3.2 million in 1996 in two separate lawsuits related to a bombing incident that
occurred in 1985. Police officers dropped C- 4 explosives from a helicopter on a residence in order to drive out
members of an anti- government group. The bomb ignited and fire spread through numerous residences,
destroying 61 structures and killing 11 people.

Other incidents have created controversy about police conduct and have resulted in civil litigation. The
beating of Rodney King in 1991 led to three Los Angeles police officers being criminally indicted, convicted,
and sent to federal prison. Later the City of Los Angeles, California, paid out $3.8 million in a civil judgment to
King. In 1993 two Detroit, Michigan, police officers were prosecuted, convicted, and sentenced to prison for the
beating death of Malice Green. In 2000 several New York City police officers were convicted and sentenced to
prison for beating Abner Louima and forcing a toilet plunger handle into his rectum.

Moreover, there have been successful outcomes in high- profile cases alleging officer misconduct. In the
spring of 2000, four New York City police officers were acquitted of criminal charges in the shooting death of
Amadou Diallo. In that case the officers fired their weapons 41 times. Officers approached Diallo and he made
a sudden reaching movement for his wallet. Because of low lighting in the doorway of the apartment complex,
visibility was poor and officers mistakenly took his movements as threatening and the appearance of the wallet
for a weapon.

In the summer of 2000 the Federal Bureau of Investigation prevailed in a civil lawsuit brought by survivors
and families of the Branch Davidian group in Waco, Texas (Garcia, 2000). Agents of the Bureau of Alcohol,
Tobacco, and Firearms (ATF) were executing a warrant for the arrest of David Koresh for firearms violations
when they encountered lethal resistance from him and members of his cult in February 1993. Several agents
were injured and six were killed. For more than 50 days Koresh and his followers refused to exit their
compound and submit to arrest. The siege ended with the main housing structure being burned as FBI agents
attempted to enter the building.

Four million dollars in damages were paid out for a deadly force incident in 1995. The Ruby Ridge standoff

13

incident in Montana left one U.S. marshal and the wife and one child of Randall Weaver dead. An FBI sniper
shot and killed Vicki Weaver while holding her infant child. Federal agents were attempting to arrest Weaver
on charges of possessing and selling illegal firearms.

While individual civil lawsuits filed against police officers have gained momentum since the 1980s, the
federal government, through the Department of Justice, has brought civil lawsuits against several police
departments. These lawsuits have been brought under § 210401 of the Violent Crime Control and Law
Enforcement Act of 1994 (Title 42 U.S.C. § 14141). The Pittsburgh, Pennsylvania, and Steubenville, Ohio, police
departments were the first police agencies to complete federal oversight through a consent decree for five years
through this law (DOJ, 1997a, b; 2005).

Jails and prison systems in the United States are also subject to prisoner civil litigation and many have
sustained consent decrees. Koren (1994) reported that the number of correctional systems under court
order/consent decree increased from 11 in 1988 to 39 in 1994, largely due to prisoner litigation. Correctional
entities have also been targets of prisoner litigation. In 2000 the Michigan Department of Corrections settled
several civil lawsuits involving sexual abuse of female prisoners by male officers. In Texas a privately operated
jail incurred litigation stemming from a shakedown in which officers were alleged to have used excessive force
and physically abused prisoners, violating their constitutional rights. The actions of the “shakedown” were
videotaped and later broadcast on Dateline NBC in 1997. The videotape showed officers and command
personnel requiring prisoners to crawl across the floor nude, while officers kicked and pepper- sprayed them,
prodded them with stun- guns, and then used a dog to move them out of their cells. On several occasions the
videotape showed the dog biting various compliant prisoners. This incident resulted in a civil litigation claim
against the sheriff, the chief deputy, and a county official in charge of the detention center’s emergency
response team (Kesler v. King, 1998). The claim alleged the use of excessive force, failure to train, failure to
supervise, and a failure to screen prospective officer candidates prior to employment. The court ruled against
the county, holding that it was not objectively reasonable to use force or the canine in such a situation, in
which prisoners were compliant.

The purpose of this chapter is to examine the prevalence of civil liability in police and correctional work.
Since the 1960s citizens and prisoners in the United States have, with increasing frequency, filed civil lawsuits
against police and correctional officers. Trends and the subject matter of these lawsuits are still emerging, and
accurate data that fully track this area of the law are sparse. Recognizing this, emerging trends and patterns of
citizen and prisoner litigation are presented.

Trends in Police Civil Lawsuits

Much of the previous scholarly research on police civil liability has focused on precedent- setting cases decided
by the United States Supreme Court (Barrineau, 1987, 1994; del Carmen, 1993; del Carmen & Smith, 1997;
Franklin, 1993; Kappeler, 1997; Klotter, 1999; Smith, 1995; Wardell, 1983). Specific police civil liability research
has addressed issues of police actions “under color of law” (Vaughn & Coomes, 1995; Zargans, 1985); deaths in
detention due to suicide (Kappeler et al., 1991); police misconduct (Littlejohn, 1981; Meadows & Trostle, 1988;
Schmidt, 1976; Silver, 2010); negligent operation of police vehicles and failure to arrest drunk drivers (Kappeler
& del Carmen, 1990a, b); officers’ attitudes toward police liability (Garrison, 1995; McCoy, 1987); liability for
abandonment in high- crime areas and moonlighting (Vaughn, 1994; Vaughn & Coomes, 1995); trends in
settling civil cases (Bureau of Justice Statistics, 1995, 1999, 2005); liability in sudden, wrongful custodial deaths
(Ross, 1998, 2005, 2007); liability trends in the police use of force (Ross, 2002); liability trends in custodial
suicides and sudden in- custody deaths (Ross, 2007, 2008a, b); and liability issues affecting police pursuits (Ross,
2008a, b).

While a great deal of research exists relative to civil suit analysis, a dearth of accurate statistical information
exists regarding the trends and types of lawsuits filed against police. It is difficult to precisely assess the true
nature of lawsuits filed against the police, partly because the courts publish only a portion of the cases they
decide and judges are selective in documenting those cases. There is no systematic method for collecting
information specific to police civil litigation. The Administrative Office of the U.S. Courts (AOC) tracks federal
civil actions annually but does not specifically report cases filed against the police. Current literature reveals
that civil lawsuits against police are widespread (Worrall, 1998), frequent (Kappeler, 1997), increasing (Kappeler

14

et al., 1993), and a major concern to law enforcement officers (Garrison, 1995; Scogin & Brodsky, 1991), police
chiefs (Vaughn et al., 2001), and government leaders (MacManus, 1997).

In the absence of this information, researchers are forced to speculate about the trends and patterns of police
civil litigation. A limited number of researchers in the past have used surveys or content analysis methods to
examine trends in police civil litigation and they suggest that the number of cases filed against police officers is
growing (Americans for Effective Law Enforcement, 1980, 1982; Barrineau & Dillingham, 1983; International
Association of Chiefs of Police, 1976; Kappeler, Kappeler, & del Carmen, 1993). Surveys administered by
Americans for Effective Law Enforcement (AELE) report civil lawsuits filed against the police rose from 1,741
cases in 1967 to 3,894 in 1971, a 124 percent increase. They also report that by 1976 more than 13,400 cases were
filed against the police (1982), making a 500 percent increase from 1967. More than 40 percent of all suits
during this period alleged false arrest, false imprisonment, or malicious prosecution. Claims of excessive

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