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Will I Get Sued?

November 01, 2007  |  by John A. Makholm


Years ago when I was attending my police academy recruit training, one of the many questions my fellow recruits and I pondered was: Will I get sued? In my case, the answer turned out to be, "Yes." And several times at that!

The question of getting sued is similar to another that haunts new recruits: Will I have to shoot someone? The answer to both questions is a resounding: maybe.

I know that sounds like a typical lawyer response to the question but, actually, it is the response of someone who has been in law enforcement for more than 32 years and who is also an attorney who defends officers and law enforcement agencies. The answer is, "Maybe," because there are too many variables involved.

I have defended officers who have done nothing wrong. I have defended officers who could have done things better. And I have defended other officers who just plain screwed up. Which one will you be? Well, if you are like most of us, at one time or another, you will fall into all three categories. Hopefully you will not fall into the fourth category of officer lawsuits: officers who knowingly do wrongful, willful, malicious, and/or unlawful acts.

Probable Cause

While luck and circumstance play into whether you will be sued, so do your own concerted efforts to keep yourself from being sued.

What efforts would these be? Well for starters: know the law! I know that sounds like a no-brainer, but I'm here to tell you that most lawsuits focus around the cause of action of false arrest either in state or federal court. The foundation of this claim is a lack of probable cause. As you have probably been taught in your academy by now, it is a tenant of the Constitution of the United States that unless you have a warrant, you must have probable cause to make a warrantless arrest.

So for starters, one good thing would be to know the definition of probable cause. You say you know what probable cause is; they already covered that stuff in class. Well, I hope that your studies included not only memorizing the Miranda warnings, but also learning a definition of probable cause.

Still, you would be surprised how many times during lawsuits that I find the sued officer cannot give a short, succinct definition of what constitutes probable cause. How many times? Almost always!

Don't get me wrong, most officers can kinda tell you what probable cause is and get it kinda right, sometimes, but that is about it. Like the old Supreme Court Justice Potter Stewart's comment about pornography, most officers know probable cause when they see it, but they have a heck of a time defining it. And if you can't define it, then a judge and jury may think you don't know what it is and that your "ignorance" led you to make a false arrest.

Here's my favorite definition of probable cause: "A law enforcement officer has probable cause to arrest a suspect if the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Williamson v.Mills, 65 F.3d 155, 158 (11th Cir. 1995).

If you memorize this definition, or another accepted judicial definition of probable cause, you will be light years ahead of the game.

Read the Books

From there you need to know the elements of each of the laws, statutes, and ordinances that you will be enforcing in your future jurisdiction. Not just kinda know what constitutes the crime; know the elements that the prosecutor will need to prove to get a conviction, or at the least a plea.

Most jurisdictions have books and manuals that break out the elements of state statutes and federal laws. I would strongly recommend that you get a copy of one of these and have it by your side for the rest of your career. Oh, and by the way, these are updated yearly, so that means making sure you have the current edition of the manual and not one that is 10 years old. Yes, I did once represent an officer who charged someone with an outdated statute. Oops.

CONTINUED: Will I Get Sued? «   Page 1 of 4   »

Tags: Cops Getting Sued, Use-of-Force Policies, Writing Reports


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