Civil Law and Liability

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• Civil Law and Liability
• Chapter 13
• Shifting Directions
• Dr. Andrew Fulkerson
• Southeast Missouri State University

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Shifting Directions

• Dramatic changes in liability since 1960s
• Monroe v. Pape, Supreme Court held that officer
  may be sued under 1983
• Monell v. Dept. of Social Services, supervisors
  and local govt may be liable for "policy"

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Liability Protection

• Government officials given qualified immunity
  from liability for actions

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Standards for Finding Liability

• Deliberate indifference applied to most
  correctional and law enforcement issues

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Deliberate Indifference

• Conditions of confinement - Wilson v. Seiter
• Failure to protect - Farmer v. Brennan
• Environmental tobacco smoke - Helling v. McKinney
• ADA cases - Penn. Dept. of Corr. v. Yeskey
• Administrative liability and failure to train -
  City of Canton v. Harris
• Admin hiring practices - Board of County
  Commissioners of Bryan Co. v. Brown

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Lethal Force Standards

• Arrest deadly force - 4th reasonableness test -
  Tennessee v. Garner
• Correctional deadly force - shocks conscience -
  Whitley v. Albers

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Officer as Plaintiff

• Texas survey - 12 of civil cases filed by
  officers/ officer wins 41 of cases
• Most common complaint is sexual harassment
• Other complaints for wrongful termination,
  discipline
• Employment discrimination re hiring, firing,
  discipline, etc.

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DOJ Investigations of Local Agencies

• Crime Bill of 1994 (42 U.S.C. 14141-14142)
• Allows DOJ to investigate police misconduct
• Requires collection of data on police abuse
• Authorizes DOJ to file suits against local
  agencies for declaratory or injunctive relief

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COP and Liability

• Does expansion of decision-making authority of
  street cop expose officer to more liability?
• But if COP programs improve relationship between
  police and citizens, liability should be reduced.

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Privatization

• Privatization of correctional facilities and
  services
• States leased inmates to private contractors for
  labor in 19th and early 20th century.
• This practice subsided. But in last 20 years
  states have contracted entire facilities to
  private companies for management of prison.

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Liability for Constitutional Torts

• Contractors are liable for civil rights
  violations
• Public function of the service provided is key.
  (Sarro v. Cornell Corrections, Inc., 2003)
• Physician contracted on a part-time basis to
  provide specialized medical services - public
  function (West v. Atkins, 1988)
• Employees of firm that contracted to provide all
  medical services for correctional facility -
  public function liability (Bafford v. Baird,
  2002 and Hinson v. Edmond, 1999)

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Liability under Public Function Test

• Providing services to children at juvenile
  residential centers (Lemoine v. New Horizons
  Ranch Center, 1998)
• Prisoner transportation (Elliott v. Stafford
  County, 2001)
• Operation of entire facilities (Sarro v. Cornell
  Corrections, Inc., 2003).

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Contractor Liability

• Contractors are liable under public function
  test
• Should contractors have qualified immunity under
  public function test?

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Richardson v. McKnight, 521 U.S. 399 (1997)
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Hope v. Pelzer, 536 U.S. 122 (2002)
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