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.
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.[PAGEBREAK]
Grounds for Defense
The best defense against any lawsuit is that you didn’t do what the plaintiff claims. However, it can’t just be your word against the plaintiff’s; you have to prove it.
And unfortunately, most lawsuits against law enforcement officers are considerably more complicated. Cops are usually sued for something that did indeed happen.
You stopped Mr. Jones’ car. You noted that Mr. Jones was intoxicated. You tried to arrest Mr. Jones for drunk driving. He resisted arrest. And you used force to subdue him and take him into custody. Those are the facts of the case. What must be interpreted is if you used excessive force in subduing Mr. Jones.
It’s here that you enter the magical and confusing world of the law. If you are being sued for “excessive force,” there are probably at least two causes of action in your case: a state tort of battery and a federal claim under Title 42, Section 1983 of the U.S. Code that you violated the plaintiff’s Fourth Amendment civil rights while acting as a law enforcement officer.
The defense strategy against each of these claims can be quite different.
Your defense against the state tort of battery could range from proving you didn’t take the actions described in the complaint to arguing that the force used was not any more than necessary to accomplish the task of arresting the plaintiff.
Federal civil rights cases are much more complex. At issue in the federal case is not just whether you used excessive force in your arrest of the plaintiff but whether the plaintiff can sue you for your actions. In a federal civil (read: constitutional) rights case, a law officer can avail him or herself of qualified immunity as a defense against any judgment resulting from actions taken on the job.
Legal scholars have written textbooks on the concept of qualified immunity, but here’s how it works in a nutshell. When a plaintiff brings a federal claim against you that you violated his or her civil rights under color of law, your defense will hinge not only on whether your actions were unlawful, but also on whether you qualify for immunity against claims stemming from your actions.
A jury or sometimes a judge will determine whether you qualify based on the following tests: Did you know that the act was unlawful? If you didn’t know that your action was unlawful, should you have known that it was?
Qualified immunity will likely be your defense if you face a federal civil rights case for illegal search and seizure under the Fourth Amendment. But remember, ignorance of the law is no excuse. If you detain someone and there is clearly established case law that you shouldn’t have done it, then you have failed the qualified immunity test. And it doesn’t matter that you didn’t know the law because the jury will decide that you should have known. After all, as a law enforcement officer, it is your duty to know the law.
It’s also important that you understand the difference between departmental policy and the law.
Much of the time if you know your agency’s policy and follow it, then your actions will be lawful. This is especially true if your agency is very proactive in adapting its policies to follow case law. However, just because you followed departmental policy, that does not mean that your actions were lawful.
And the reverse is true as well. “Just because an officer’s actions were outside of policy does not mean that he or she can’t avail him or herself of qualified immunity as a defense,” says Lance Tyler, Atlanta-based attorney for the International Brotherhood of Police Officers.
Of course, as noted, qualified immunity is often decided by a jury, and juries can get confused between policy violations and what constitutes a violation of law by an officer. In other words, if you violate policy, it could influence the jury’s decision.
“It’s hard for a jury to really intellectually make the distinction,” agrees Scott MacLatchie, a Charlotte-based attorney who has been representing officers and their agencies for more than 20 years. “If a jury hears that an officer violated his own agency’s policy that governed a use of force or some other procedure and a suspect was injured and a suspect is seeking monetary damages for that, then a jury is going to be heavily influenced by evidence that policy was breached. So that will probably lend itself to a verdict against the officer.”
Put simply, one of the best ways to limit your risk of being found civilly liable is to know your department’s policy manual. Former officer now union attorney Tyler says reading and knowing your agency’s manual can make a big difference in both staying out of court and winning your case when you do find yourself facing a jury.
However, Tyler admits that no agency’s policy manual is a page-turner. “You have to read it a page at a time,” he says. “When I was first in law enforcement, I put it in my bathroom. Then every time I went to the bathroom, I read a page until I had read it from cover to cover. Then I went back through and re-covered issues that were critical to what I was doing at the time like use of force and pursuit.”[PAGEBREAK]
In the Court
Many lawsuits against police officers are settled or dismissed before the officer named has to enter the doors of a civil court. But if you’re sued and your case makes it to court, there are things that you can do that will make your attorney’s job easier and a positive outcome more likely.
• Listen to your attorney. He or she knows the law better than you. He or she knows the court better than you. And he or she wants to win as much as you do.
• Dress sharp. Some attorneys like their officers to appear in their dress uniforms. It’s a great way of communicating your authority. In a less cop-friendly environment, others might prefer that you wear a civilian suit. Either way, how you dress will be part of your lawyer’s strategy. Follow his or her instructions.
• Act professionally. Regardless of how much this lawsuit enrages you or how much contempt you have for the plaintiff and his or her lawyer, don’t show it. “You have to be aware that everyone in the court is watching everything that you are doing,” says Makholm. “Making faces at the plaintiff is not going to score you any points with the jury. And don’t get caught up in histrionics like rolling your eyes, making audible noises, or otherwise drawing attention to yourself in a negative way. Most jurors want to like you—you’re a police officer—so let them; be the shining knight that they think you should be.”
• Stay alert. You are part of the defense team. If you keep your mind on the proceedings, you may notice something during trial that can help your case. Work out a communication system with your attorney—such as passing notes—before trial begins.
In the eyes of the court, you are an authority on two subjects pertaining to your case: what happened during the incident that precipitated this lawsuit and why you took the action.
But believe it or not, one of the primary difficulties that police officers have during civil trials is that they don’t remember what happened.
Media reports may have led you to believe that most lawsuits against police are launched because of sensational and memorable incidents like officer-involved shootings, fatal patrol car accidents, and videotaped physical altercations. But that’s not really true.
Most lawsuits against cops spring from fairly mundane, everyday police operations. You can be sued for any number of state torts and federal civil rights violations, stemming from arrests, detentions, searches, and even breaking up a lawful demonstration.
And if that doesn’t make it hard enough for you to recall what happened in the case at issue, add to it the fact that in most states the plaintiff can file up to three years after the incident. Do you remember the details of every arrest you made three years ago? Probably not. Think of an arrest that you made yesterday. OK. Now ask yourself how many of the details of that arrest you would be able to remember three years from now if you were asked to do so at a deposition.
This is why civil defense attorneys who represent cops say that you need to keep better records. Of course, you have your official report. But as you know, that report is often just an outline. Many attorneys contacted for this article say that the best thing a cop can do to limit his or her civil risk is to write great reports and keep additional records on all cases that might trigger lawsuits.
“In plain talk, when the involved law enforcement officer is asked to describe what happened and he or she says, ‘I don’t remember,’ nothing good is likely to result from it,” says Robert Thomas, attorney for the Mecklenburg County (N.C.) Sheriff’s Office. “The officer involved has a story to tell, but that officer has to remember what happened in order to tell it.”
Thomas advises officers to keep as much information as possible on cases they believe could generate lawsuits. “Unless you have a photographic memory, memorialize the critical details with notes or electronic media. That’s what you’re going to have to testify about, and it doesn’t help if you don’t remember the critical details,” he says.
Of course, Thomas’ advice goes against the long-cherished police belief that you shouldn’t put anything in writing because it can be used against you. Thomas has a one-word answer for that fear: “Hogwash!”[PAGEBREAK]
Attorneys who represent cops in civil lawsuits, especially in use-of-force cases, say that one of their biggest problems is dispelling the myths jurors have about your capabilities. “They get their ideas about defensive tactics from TV,” says Makholm. “I’ve had jurors tell me that they found for the plaintiff because they didn’t understand why the officer didn’t just kick the gun out of the person’s hand rather than shoot him.”
Faced with such ignorance of the realities of policing, part of Makholm’s job is to educate the jury. And if an officer has documented his or her training in much more detail than his or her agency ever could, then that makes it easier for Makholm or any other attorney to teach the jury about the difference between TV cops and real cops.
Makholm even recommends that officers keep track of what instructive videos they have watched and what police tactics books and magazines they have read. He points to Calibre Press’ venerable training tape “Surviving Edged Weapons” as the kind of educational material that can be very useful in convincing a jury that an officer’s use of force was reasonable.
“I defy anyone to watch that movie and not have a greater appreciation of the threat presented by edged weapons,” Makholm says. And if I’m representing you in a case involving shooting somebody with a knife and you’ve seen that movie, then I may be able to get it in and show it to the jury. But if you didn’t keep a record of seeing it, then the jury won’t be watching it.”
Win or Lose
There are two ways that you, as a defendant, can win a lawsuit. The case can be dismissed. Or it can go to a verdict and the jury finds for you.
Either way, it’s time to celebrate. Yes, this whole mess could start again. But once a case has been dismissed or the jury has decided in your favor, you probably won’t hear from the plaintiff.
Few plaintiffs have the resources to pay a lawyer to keep kicking a dead horse at as much as $250 per hour. And if the plaintiff’s attorneys are working on contingency, they may want to cut their losses rather than appeal. Yes, they can appeal, and sometimes they will, but most will just fade away.
OK. What if you lose?
Well, it’s not the end of the world. If you lose, with the extremely rare exception such as a case in which you flagrantly disobeyed orders or totally disregarded policy, your agency will pick up the check. That includes any judgment awarded to the plaintiff and any attorney’s fees levied by the court.
Essentially, all of the money paid out will come from your agency’s liability insurance. Most agencies indemnify their officers against personal loss resulting from a civil judgment because otherwise, nobody would work for them.
Now, let’s talk about one major exception to this rule. In state cases, juries can award punitive damages beyond the actual financial damages suffered by the plaintiff. Punitive damages are a financial punishment that a jury can award to a plaintiff if it feels you really crossed the line.
Generally, if you break a subject’s wrist during a physical altercation and the jury feels you were in the wrong but you didn’t intend harm, they will likely award the plaintiff damages based on pain and suffering. But if you hammered on a suspect with a heavy Maglite for 10 minutes and broke his skull after he was restrained and down, the jury could turn vengeful and slap you with punitive damages.
The last thing you want is for a jury to award punitive damages to someone who has sued you. In some states, government entities are prohibited from paying punitive damages for their officers. Other states leave this to the discretion of the local government. So if you get smacked around by a runaway jury, you may still have a chance to avoid personal loss.
No one will tell you that lawsuits are not stressful. They’re painful, even when they are totally frivolous and dismissed. But if you respond to them promptly and professionally and listen to the advice of your attorneys, then you have a good chance of prevailing, which will preserve your career and your personal assets.
Managing Your Risk
Nothing can make you 100-percent lawsuit proof. It’s the nature of your job that a mistake, a misunderstanding, or just somebody’s contempt for cops can lead to a lawsuit.
That said, there are steps that you can take to reduce the chance of being sued. And if you are sued, one or more of these may help you win.
• Know what is likely to trigger a lawsuit. See “Danger Areas” on page 46 for a short list.
• Keep abreast of the law. No one expects you to be a lawyer. But your department should have videos and other resources to help you learn about the latest Supreme Court decisions that affect your work. You can also read about them in “Point of Law,” the monthly Police Magazine column by attorney and former cop Devallis Rutledge.
• Read your policy manual. Yes, we know it’s frightfully dull and it was written by bureaucrats whose prose style could put a tweaker to sleep. Read it anyway. Ask your supervisor to explain any section that you don’t understand.
• Get as much training as you can. Even if the department doesn’t pay for it, get it.
• Keep records of all of your training. Yes, your department does this, but their records are far from comprehensive. Also note training videos that you watch and police instructional books and magazine articles that you read.
• When possible, take notes during training and keep them. Later you can use them on the stand if you need to explain what was taught in that class.
• Write thorough reports on any incident that you think could lead to a cause of action. Keep your own notes for these cases.
The following are some of the most common actions and incidents that can lead to a lawsuit against you and your agency.
• Officer-involved shootings
• Any use of force
• Police vehicle accidents
• SWAT operations
• K-9 operations
• Confinement conditions (jails and prisons only)
Be watchful for these and any police activity that results in somebody getting hurt. In general, the more serious the injury to a suspect, subject, or bystander, the more likely there will be a lawsuit.