Transcript University of Indianapolis

University of Indianapolis
Police Administration
CRIM 340-50
Police Misconduct & Remedies
Thomas N. Davidson, J.D.
www.thinblueline.ws
Police Ethics and Misconduct
• Police have a property interest in their jobs.
• Cannot be terminated or disciplined without
due process.
Police Ethics and Misconduct
Internal Investigation
1. Founded
2. Unfounded
3. Exonerated
4. Not determined.
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.
Garrity Warning
Bifurcated Investigation
Criminal Investigation
Interview
Criminal Investigation
Internal Investigation
Internal Investigation
Interview
Is drug testing employees legal?
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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:
1. Articulable suspicion
2. Safety sensitive employees
• Watch out for tort traps such as false imprisonment, IIED,
defamation, & wrongful termination.
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.
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 employee’s specific
behaviors, conduct and derivative unsatisfactory
performance; and 6) there must be review for determining
whether the agreement was breached by the employee
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 employee’s specific
behaviors, conduct and derivative unsatisfactory
performance; and 6) there must be review for determining
whether the agreement was breached by the employee
42 USCA § 1983 Liability
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.
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).
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).
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.
Objective Reasonableness Test
Claims of excessive use of force by police invoke
protections under the 4th Amendment.
The question is decided by whether the officer’s
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).
Tennessee v. Garner
Deadly force by police is justified:
1. To protect/defend oneself or a third party
from the threat of immanent serious bodily
injury or death;
2. To interdict a forcible felony;
3. To apprehend a fleeing forcible felon once
less lethal means of capture have failed, and
suspect will get away if you don’t (provide a
warning whenever possible.).
Use of Force Continuum
Lethal Event
Section 1983 Remedies
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Injunctive relief
Money damages
Punitive damages
Attorney fees for prevailing party
State Tort Law
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Legal duty
Breach of duty
Proximate cause
Injury
Identifiable damages
Defenses – Proof
• Contributory negligence (State of Indiana)
• Comparative negligence (Private and political
subdivisions).
• Assumption of Risks.
• Proof by preponderance of the evidence.
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.
Liability Cases
• Quakenbush v. Lackey, 622 N.E.2d 1284 (1993)
(Overruling Seymour Nat’l 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).
Public v. Private Duty
Special Relationship
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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.
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.
Police Pursuits - Torts
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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.
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.
Tactical Pursuit Intervention
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Stop sticks - tire deflation.
Pursuit intervention technique (spin out).
Boxing in.
Ramming (Use of force).
Channelization.
Barricades.
Pursuit Policies
• Severely restrict pursuits
• Set standards with supervisory control
• Minimal standards.
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.
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.
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 > 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.
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.
Remedies
• Criminal sanctions = fines, imprisonment,
probation.
• Civil sanctions = money damages, restitution,
retraining.
• Internal sanctions = counseling, transfer,
suspension, demotion, termination.
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.
Risk Management
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Job task analysis – screening, training, testing.
Job descriptions & performance evaluations.
Risk control program.
Policy development.
Risk reduction strategies – avoidance,
prevention, reduction, & transfer.
Stress
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.
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)
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
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
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
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
General Adaptation Syndrome
3 stages of psychological reaction to stress.
1. Alarm.
2. Resistance.
3. Exhaustion.
Stress & Personality Types
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Type A Personality
Constant stress
Demanding
Urgency
Intense
Type B Personality
Easy going
Less rushed
Philosophical
Separate work from leisure
Workaholic
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Similar to Type A
Addiction to work
Agitated when not working
Buck the system
Perfectionist
Prefer labor to leisure
Police Job Stress
Stressors in law enforcement have been
identified in a variety of ways:
1. Organizational practices
2. Criminal justice practices
3. Public practices
4. Police work itself
Relationship Between Stress and Performance
http://www.fsis.usda.gov/PDF/PHVs1-Wellness.pdf
http://www.fsis.usda.gov/PDF/PHVs1-Wellness.pdf
Responses to Stress: Alcohol Abuse
Signs of police alcohol abuse include:
1. Slipping away from duty for short periods
2. Drinking at lunch or during breaks
3. Red and bleary eyes
4. Mood changes
5. Reduced quality of work
6. Absenteeism
7. Loud talking
8. Hangovers
9. Hand tremors
10. Punctuality and late to work
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.
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
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 solutions
2. Increase in alcohol use
3. Work-related problems
4. Divorce or break-up of a relationship
5. Increase in sick days
6. Mood swings
7. Depression
8. Recent death in the family
9. Exposure to a work-related trauma
10. Use of deadly force
Police Suicide
Typically, when police officers experience serious, longterm emotional problems that can lead to suicide, 2
reactions occur that hinder the helping process. 1st,
everyone--from the affected officers to friends & coworkers 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.
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.
Police Suicide: Clues
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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
Police Suicide: Intervention & Prevention
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EAP
Drug awareness and prevention programs
Chaplain programs
Training
Officers
Supervisors
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 fullfledged post-traumatic stress disorder.
FBI Law Enforcement Bulletin
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.