Most law enforcement professionals joined the policing profession because they have a desire to serve and protect the community – not to spend time in a courtroom. But the reality is that every law enforcement professional will deal with some form of litigation – whether as a defendant or a witness – throughout their career, so it makes sense to be prepared.
In a recent webinar, Anatomy of a Lawsuit, Chief Ken Wallentine and Laura Scarry discuss what law enforcement officers should know about litigation before it’s at their doorstep – and how to respond appropriately when it comes. One big hurdle faced by officers is the complex legal lingo. Just as police often seem to have their own language, so too does the legal system, and it’s important for law enforcement professionals to understand the key terms relating to police that play a role in litigation.
Qualified immunity has long been a big topic in and around police reform, but what is it really? A common misconception is that qualified immunity offers protection specifically and only to law enforcement – and that it protects them from everything. In reality, qualified immunity pertains to all government officials, including elected and other government personnel, and provides limited (or “qualified”) protection, reducing the cost of frivolous lawsuits to the government body.
It’s important to differentiate between qualified immunity and absolute immunity. Absolute immunity is granted only to specific government officials and protects for all official acts without regard to motive. Conversely, law enforcement officers operate under qualified immunity, which only offers protection in specific and well-defined circumstances. When determining qualified immunity, the court asks two questions: First, did the officer violate a Constitutional right? If the answer is yes, the court then determines if the officer knew their actions violated the individual’s clearly established right. Qualified immunity does not protect officers in cases of criminal negligence or criminal acts but allows officers to respond to incidents without unnecessary or dangerous pause.
Summary Judgment & Settlements
When can qualified immunity be applied and how does it affect the outcome of a trial? Qualified immunity is directly related to granting summary judgments. Summary judgment is, simply put, a judgment entered by a court for one party, against the other party, without a completed trial. An individual officer may ask for summary judgment on the basis of qualified immunity, essentially stopping the trial in its tracks and, if summary judgment is decided, leading to a conclusion without a full trial.
Find good legal representation and get a plan in place now – before an incident occurs where litigation may be involved.
Another way to reach an early conclusion is through settlement. A settlement is an agreement that takes place between the two parties, resulting in the voluntary dismissal of any related litigation, circumventing the trial altogether. Contrary to what many officers may believe, settlements are not solely about the money and they are not necessarily an admission of guilt on the part of the officer. In many cases, it may make the most sense financially and relationally to agree to a settlement, avoiding the expensive, exhausting and often demoralizing trial.
Indemnification is a critical concept for law enforcement professionals to understand. Most indemnification laws preclude government liability for bad faith conduct or criminal conduct, meaning that the government body will pay damages awarded in a lawsuit. Some states may limit the amount of the indemnity, leaving officers or officials to satisfy excess claims, so officers must be familiar with their state laws regarding indemnity. When a city indemnifies, it simply means the city writes the check for a judgment awarded against an officer. In other words, the officer is not on the hook for incurring the cost of a lawsuit. Similarly, it is extremely rare for an officer to pay out any money for the cost of legal representation and defense through the course of the lawsuit.
What to Consider
So, how can you prepare? Find good legal representation and get a plan in place now – before an incident occurs where litigation may be involved. Preparing ahead of time and ensuring solid understanding of key legal ideas and terms can make the process of litigation a lighter burden on officers. For law enforcement leaders: Support your officers as they walk through a lawsuit. Your support is critical and can make all the difference when it comes to morale – for the involved officers and all personnel.
Watch the on-demand webinar, Anatomy of a Lawsuit, to learn more.