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Liability: Staying Off the Hook

Being sued is one of the great hazards of police work, but you can prevail, if you play it smart.

September 01, 2005  |  by - Also by this author

A process server has dropped a summons and complaint notice in your hand. You’re being sued for something that the plaintiff claims you did on the job.

OK. First take a deep breath. Being sued doesn’t necessarily mean the end of your career. Nor does it necessarily mean that you are about to turn over your hard-earned personal assets to some plaintiff’s attorney and his client. It just means you’re being sued. And you can win.

The Ticking Clock

Now that you’ve taken a pause to calm down and center yourself, it’s time to take action. Immediately notify your supervisor about the summons, give him or her a copy, and confirm that the summons will be brought to the attention of whoever handles such matters in your agency.

Whatever you do, don’t disregard a civil summons. Regardless of how stupid you may think the complaint is, this is serious stuff.

Ignoring a lawsuit will not make it go away. And no matter how much the plaintiff’s claims infuriate you, you are required to dignify them with an answer.

Once any defendant is served in a civil case, the clock starts ticking. You—meaning your attorney—only have 20 or maybe 30 days to respond to a civil suit. Once that deadline passes, the plaintiff can ask for a default judgment. And that can result in you automatically losing your case without a defense.

Default judgments are somewhat rare. They are the worst case scenario. What’s more likely to happen if you sit on a suit is you will make life hard on yourself, your agency, and your attorney. You may also limit some of the strategies available to the defense, and that’s not good.

“Many times officers get served, put it in the back of the patrol car, go home for the weekend, and don’t tell anybody,” says John Makholm, a Florida attorney who defends law enforcement agencies and their officers. “And that’s the worst thing you can do. By the time it comes to me, I only have about a day-and-a-half to answer.”

Once you’ve notified your supervisor and are satisfied that the summons and complaint will be handled according to agency policy, make a second notification to your union or police organization. If you don’t have one, don’t worry about it. Union attorneys usually don’t handle civil liability. They leave that job to specialists hired by insurance companies that cover the cities and counties that employ you.

You’ve Got Friends

You’ve been sued. Don’t let it define you. Go back to work and live your life. Do not dwell on the lawsuit. Good cops get sued. Statistically, good cops get sued more often than bad ones. It’s an occupational hazard.

Whatever you do, don’t panic and go out and hire your own attorney. Except in very special cases in which the actions that sparked the lawsuit were outside the scope of your job, most agencies supply their officers with counsel.

It’s extremely rare for an agency to leave an officer twisting in the wind. One attorney interviewed for this article said that in 20 years of practice he’s never seen a case where an officer had to personally hire an attorney.

There are two reasons why cities and counties don’t hang their officers out to dry in civil cases. Doing so would make it really difficult for them to attract men and women who are willing to be cops. And perhaps more importantly, if you lose, they lose. In the overwhelming majority of cases, the agency’s insurer pays any judgment or fees awarded to the plaintiff or the plaintiff’s attorney.

So you probably don’t have to hire an attorney. And be very glad about that. Hiring a lawyer for even a simple lawsuit can cost more than $10,000. If it’s a complicated case, you’re looking at a second mortgage.

Pretrial Maneuvers

While you shouldn’t let the fact that you are being sued dominate your life or your work, it’s important for you to be part of the defense.

First, read the complaint. If you don’t understand any of it, then have your attorney explain it. He or she is your advocate, but it’s your name on the complaint and you need to know why you are being sued.

Stay in touch with your attorneys. When they send you papers, respond to them immediately. Your attorneys will ask you for information and paperwork; make sure that you give them all they need.

Even if your attorney makes a living defending cops, he or she may not know very much about your work. So help your attorney understand what you do and how you do it.

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