Special Agent Hall is a legal instructor at the FBI Academy.
Strict policies should not open law enforcement officers or their agencies to greater liability.
A law enforcement agency's internal policies should provide clear guidance and a basis of accountability for important law enforcement functions, such as arrest, use of deadly force, and vehicle pursuits. However, it has become a commonly held perception within law enforcement circles that a police officer's violation of department policy is a valid basis for a lawsuit against the officer and perhaps even the department.
The frequency with which plaintiffs raise the issue undoubtedly perpetuates this view, with potentially unfortunate consequences for agencies and communities. For example, law enforcement executives may be reluctant to develop otherwise appropriate policies if they believe that in doing so they are increasing the risks of liability for themselves and their officers. Moreover, otherwise defensible lawsuits may be unwisely settled by agencies under the erroneous belief that an officer's mistakes in applying policy render the case indefensible in court. This article discusses those misconceptions, clarifying the liability implications of policy violations in general, and deadly force policy violations in particular.
Legal Duties
The basic formula for any lawsuit is 1) existence of a legal duty owed by one party to another, 2) an alleged breach of that duty, and 3) injury or loss resulting from that breach. Legal duties may arise in a variety of contexts, but most generally are established by custom, statute, or constitutional law. Whatever its source, a legal duty must be owed to the plaintiff by the named defendant in order for a civil suit to be viable. That being the case, a departmental policy must create a legal duty to a potential plaintiff before a violation of that policy can create liability. In reality, whether a policy violation is even relevant to the question of the legal liability of an officer or department depends to a large extent upon the nature of the claim and the forum in which it is brought. For example, policy violations in tort claims brought under state law alleging negligence will generally be treated differently than claims brought under federal law alleging violations of federal constitutional rights. The relevance of departmental policy also can depend upon whether a legal duty, or standard of conduct, is clearly delineated by law, or whether it is determined by reference to custom or practice.
State Tort Claims
A simple tort claim alleges that the defendant breached a legal duty owed to the plaintiff, thereby causing injury or loss. The breach of that duty may have been intentional or merely negligent. In deciding whether there was a legal duty, and whether the defendant breached it, the courts have looked to statutory law as well as custom and practice in the particular area of law enforcement activity.
While these principles generally are most relevant to private parties rather than public agencies and employees, most states have adopted statutes that permit tort claims against public entities under some circumstances. In such cases, where there is no clearly delineated standard established by law, the courts frequently reference departmental policy as "evidence" of a duty owed, or an appropriate standard of conduct. In such cases, an officer's violation of the depart-ment's policy may be used to establish legal liability.1
Conversely, a policy violation should not be relevant if the appropriate legal standard of conduct is already clearly established by law. For example, if a state statute permits an officer to use deadly force to prevent the escape of a fleeing dangerous felon, a more restrictive policy standard that prevents deadly force in such circumstances should not be substituted as a legal measure of the officer's conduct. The public's interest in effective law enforcement is not served if law enforcement agencies are not free to create stricter standards of conduct for their officers without also creating higher risks of liability.
Constitutional Tort Claims
Constitutional tort claims, unlike state tort claims focus on alleged violations of duties established by the United States Constitution--e.g., unreasonable search and seizure, excessive force, etc. Consequently, the bases for suits under the Constitution are generally fewer and more narrowly defined than those under state law, and violations of state tort law may not implicate any federal constitutional rights.
This point was emphasized by the Supreme Court in Daniels v. Williams,2 in which an inmate in state prison sought damages for injuries sustained when he slipped on a pillow negligently left on the stairs by a prison employee. The Court held that there was no basis for finding a violation of a con-stitutional right by simply asserting that a government actor was negligent. The Court traced the history of the development of constitutional rights, noted that they were "...intended to secure the individual from the arbitrary exercise of the powers of government" and commented: We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmates's property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the [Constitution] would trivialize the centuries-old principle of due process of law.3 Emphasizing that the protections of the Constitution were not intended "...to supplant traditional tort law" the Court stated:
It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns.4 Thus, while negligence claims against a police officer or the department may be recognized under state law, the Supreme Court has held that simple negligence-or lack of due care-is insufficient to establish the violation of a federal constitutional right. These distinctions between state tort claims and federal constitutional tort claims can have a bearing on the different ways the courts treat allegations of policy violations.
The Role of Policy Violations in Constitutional Rights Litigation When a federal constitutional challenge is made to a law enforcement officer's use of deadly force, the department's use-of-force policy often becomes an issue. Ironically, the relevance of the policy may be alleged in two seemingly contradictory ways. In suits brought against an officer under Title 42 United States Code, Section 1983, alleging the officer's use of force violated the Constitution, the plaintiff will frequently assert that the officer's violation of the department's policy is evidence of the constitutional violation. On the other hand, if plaintiffs desire to expand the scope of the suit to include the local government entity-i.e., the county or municipality-they may allege that the officer's unconstitutional behavior was caused by a policy, custom, or practice of the agency.5 In the latter instance, the plaintiff is asserting that it is compliance with the policy, not its violation, that caused the constitutional tort.
In cases alleging the unconstitutional use of deadly force by police officers, the policy issue will generally be raised in two different contexts. The first, relating to the actual use of deadly force, asserts that because an officer's decision to use deadly force violated the department's policy the action constitutes an unreasonable use of force under the Fourth Amendment. The second, relating to events preceding the actual use of deadly force, alleges that policy and procedural violations leading up to the officer's use of deadly force caused the situation that ultimately justified the officer's use of deadly force. Each of these allegations is addressed below.
Departmental Policies and Legal Duties
Whether or not a departmental policy creates a legal duty is a question the U.S. Supreme Court has not directly addressed. In Tennessee v. Garner,6 the Court considered departmental policies in assessing the consequences of imposing a constitutional standard stricter than the traditional common law rule for using deadly force to prevent the escape of fleeing felons. Noting that most of the major law enforcement agencies had apparently already adopted more stringent policy standards than the common law fleeing felon rule, the Court reasoned that a constitutional standard that does the same thing was not likely to have any significant detrimental impact on law enforcement interests. The Court observed: We would hesitate to declare a police practice of long standing 'unreasonable' if doing so would severely hamper effective law enforcement.7
It is important to note that the Court did not suggest that departmental policies were tantamount to a constitutional standard, or even evidence of what a constitutional standard should be, but only that they supported the view that rejection of the common law fleeing felon rule would not significantly impair law enforcement functions.
Since the decision in Garner, the lower federal courts have been generally consistent in rejecting policy violation claims as a basis for concluding that an officer violated a constitutional right. For example, in Smith v. Freland,8 the plaintiff asserted that the defend- ant police officer used deadly force in direct violation of the depart-ment's policy. Police officers engaged in a high speed pursuit in an attempt to apprehend the driver of a vehicle for a traffic violation. During the pursuit, the driver evaded several attempts by the police to block his car and forced the officers to take evasive action to avoid a collision.
The suspect eventually turned down a dead-end street, made a U-turn and came to a stop when confronted by one of the pursuing police cars. As the officer got out of his police cruiser, the suspect rammed the vehicle, then backed up and "zoomed around the police car." The officer drew his service weapon and fired one shot which struck and killed the driver.
In the ensuing lawsuit, the district court granted summary judgment in favor of the officer, concluding that he had not deprived the suspect of his constitutional rights. On appeal, the plaintiff asserted, among other things, that the officer's action in firing at the vehicle violated the department's policy which explicitly prohibited shooting at moving vehicles and using deadly force to apprehend suspected misdemeanants.
The appellate court upheld the district court's grant of summary judgment for the officer, and addressed the policy violation argument as follows: ...the fact that [the officer's] actions may have violated [departmental] policies regarding police use of force does not require a different result. Under [Section] 1983, the issue is whether [the officer] violated the Constitution, not whether he should be disciplined by his department. A city can certainly choose to hold its officers to a higher standard than that required by the Constitution without being subjected to increased liability under [Title 42 U.S.C., Section] 1983.9
The court reasoned that a different rule "...would encourage all governments to adopt the least restrictive policies possible."10 The holding of the court in Freland is typical of decisions in other federal courts that violations of a depart-ment's deadly force policy are generally irrelevant to the constitutional question.11
As noted previously, in addition to the claim that an officer violated department policy-and therefore the Constitution-by using deadly force, plaintiffs frequently allege that the officer violated "reasonable police procedures," thereby unnecessarily creating the need to use deadly force. For example, in Salim v. Proulx,12 the plaintiff alleged that an officer used excessive force in fatally shooting a juvenile during an attempt to arrest the youth. To support the allegation, the plaintiff asserted that the officer "created a situation in which the use of deadly force became necessary"13 by locking his service revolver and radio in the trunk of his police car before approaching the juvenile, by failing to carry handcuffs or other disabling devices, and by failing to disengage when other juveniles joined the fray. The appellate court, reversing the district court's denial of summary judgment for the officer, addressed the particular issue as follows: ...[the officer's] actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.14
The policy or procedural violations attributed to the officer by the plaintiff in this instance were viewed by the court as irrelevant in light of the narrow scope of the inquiry in excessive force claims under the federal Constitution. However, these alleged policy or procedural violations may be relevant in establishing liability for negligence under state law.
The Purpose of Departmental Policy
In Scott v. Henrich,15 two officers responded to a call that a man had been firing shots from a rifle or shotgun in the street, and that he had just entered a nearby apartment building. Immediately upon entering the building, the officers were confronted by a man who pointed a rifle at them. The officers fired several shots, mortally wounding the subject.
In a lawsuit against the of-ficers, an "expert" witness testified that the officers' actions were unreasonable because, among other things, they violated the depart-ment's policy on how such situations should be handled. In other words, if the officers had done things differently they would not have placed themselves in a threatening situation where deadly force became necessary. Relying upon the department's policies and guidelines, the plaintiff contended that the officers should have developed a tactical plan, sealed possible escape paths, called for back-up, and attempted to coax the suspect into surrendering. Addressing this contention, the appellate court wrote:
Assuming internal police guidelines are relevant...they are relevant only when one of their purposes is to protect the individual against whom force is used....Both the guidelines at issue here and the context in which they appear in the police manual show they were meant to safeguard the police and other innocent parties, not the suspect....A violation of these guidelines might be deserving of discipline, but it's irrelevant to [plaintiff's] case.16
It is important to note here that the appellate court did not decide that internal police guidelines are relevant in some instances; they only assumed that they might be relevant in the narrow instance described-i.e., when the policy was intended to safeguard the plaintiff.
Although the purpose of some policies may be self-evident from their contents, this may not be a simple matter to ascertain in other cases. The court in Henrich, for example, distinguished between a policy that limits the use of choke holds to protect suspects from being fatally injured and a policy that bans high-speed chases in order to protect bystanders. In the latter instance, the court reasoned "...a suspect arrested after an unauthorized chase can't complain about the violation of a rule not intended for his benefit."17
Disclaimers
To further reduce the risk that a policy violation will be viewed as relevant, law enforcement agencies should exercise care when drafting their policies. Obviously, such policies must be carefully crafted to avoid encouraging or condoning actions that cause constitutional violations. But to avoid the mistaken view that the creation of a legal duty was intended, care also should be taken to clearly express the intent or purpose of a department policy. Agencies may even consider including a specific disclaimer. For example, when the United States Department of Justice adopted a new deadly force policy in October 1995, it included the following statement: Nothing in this policy and the attached commentary is intended to create or does create an enforceable legal right or private right of action.
Such a disclaimer may not be dispositive of the relevance question, but it should at least provide evidence of the department's intent in adopting the policy.
Conclusion
It seems critical that law enforcement agencies be capable of developing and implementing policies that are deemed necessary to fulfil their missions without being overly concerned that doing so will create increased risks of liability. When lawsuits are brought against police officers and their agencies under Title 42 U.S.C., Section 1983, alleging violations of federal constitutional rights, the cases suggest it is unlikely that violations of departmental policy will be considered relevant, although they may be deemed relevant in some negligence actions under state law. Accordingly, those who must assess the defensibility of such suits should not assume that violations of policy render the case indefensible.
Endnotes
1 See, e.g., Griglione v. Martin, 525 N.W. 2d 810 (Iowa, 1994); Haynes v. Hamilton County, 883 S.W. 2d 606 (Tenn. 1994); and Carl v. Overland Park, 65 F.3d 871 (10th Cir. 1995). 2 474 U.S. 327 (1986). See, also, Davidson v. Cannon, 474 U.S. 344 (1986). 3 474 U.S. at 332. 4 Id. at 333. 5 See, Monell v. Dept of Social Services, 436 U.S. 658 (1978). 6 471 U.S. 1 (1985). 7 Id. at 19. 8 954 F.2d 343 (6th Cir. 1992). 9 Id. at 347. 10 Id. at 348. 11 See, e.g., Drewitt v. Pratt, 999 F.2d 744 (4th Cir. 1993); Fraire v. City of Arlington, 957 F.2d 1268 (5th), cert. denied, 113 S. Ct. 412 (1992); Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992); and Wilson v. Meeks, 52 F. 3d 1547 (10th Cir. 1995). 12 93 F.3d 86 (2nd Cir. 1996). 13 Id. at 92. 14 Id. 15 39 F. 3d 912 (9th Cir. 1994). 16 Id. at 915-916. 17 Id. at 916.