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Departments : Point of Law

Controlling Lawsuit Risks

The best way to avoid being sued for the execution of your duties is to know the law.

February 01, 2005  |  by Devallis Rutledge - Also by this author

The result of the Heck ruling is that you can increase your protection against civil liability by doing everything legally possible to secure the filing of charges against your arrestees by the prosecutor or grand jury and furnishing sufficient admissible evidence to allow the prosecutor to obtain a conviction on at least one of the appropriate charges. (Note: Where the facts warrant, conviction on a charge that includes the element of lawful performance of your official duty gives the additional protection against most force claims.)

Devenpeck v. Alford

A recent Supreme Court opinion in a civil liability case may sometimes provide additional protection in cases not barred by Heck.

Jerome Alford was arrested by officers of the Washington State Patrol on charges of unlawfully taping conversations during a vehicle stop. When Alford pointed out that a state court of appeals had previously issued a decision declaring that such taping was not illegal (again illustrating the need for ongoing update training), the trial court dismissed the charges, and Alford filed suit against both officers for false arrest.

One of the defenses raised by the officers was that even if there was no probable cause to arrest Alford for illegal taping, they could have arrested him for impersonating an officer or obstructing an officer. Since there was probable cause to arrest for other offenses, there should be no liability for false arrest.

The Ninth Circuit federal court rejected this defense and held that officers could only rely on P.C. to arrest for a different offense if that offense were “closely related” to the booking charges actually specified by the arresting officers. Since impersonating or obstructing did not relate to the charge of unlawful taping, the Ninth Circuit ruled the officers liable to possible damages on retrial.

However, the Supreme Court unanimously reversed the Ninth Circuit. Citing a number of its previous rulings, explaining that probable cause is to be objectively determined without regard to the officer’s subjective analysis, the court said that an officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” In other words, even if you make a mistake and arrest for a crime for which you lack P.C., the arrest is still good (meaning any resulting evidence is still admissible, and no liability attaches for false arrest) as long as you or the prosecutor or your civil attorney can identify some offense for which you did have probable cause at the time of arrest.

Using Heck and Devenpeck

Local charging policies should be observed when you refer cases to the prosecutor or grand jury, of course. But to the extent allowable, you may want to consider making a general practice of identifying every criminal offense supported by the evidence when you arrest someone and requesting that all appropriate charges be filed.

This could increase the chances of prosecution and conviction for at least one crime, invoking the Heck shield. And even if no successful prosecution is obtained in a particular case, the identification of multiple offenses as to which you had P.C. to arrest should help discourage frivolous lawsuits for false arrest and imprisonment.

Devallis Rutledge, a district attorney special counsel, is a former police officer and civil liability advisor.

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Tags: Point of Law, Search and Seizure


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