Magazine article Law & Order

Malfeasance of Office

Magazine article Law & Order

Malfeasance of Office

Article excerpt

What is malfeasance? It's misconduct or wrong-doing, especially by a public official. Some departments- and some officers- don't think accident investigation is such a big deal. It evidently doesn't matter that more people die in traffic accidents than in suicides, homicides and related crimes. And it apparently doesn't matter that more property damage occurs as a result of traffic accidents than in all the burglaries and robberies.

Too many chiefs and sheriffs, and officers working the road, feel that traffic accidents are something best left to insurance companies. Consequently, so many law enforcement personnel do shoddy work when called to investigate accidentsor crashes, collisions, whatever name given them. And that can come back to haunt you.

The good news is most states have laws protecting officers and departments. For example, Indiana Code 34-13-3-3, Immunity of Governmental Entity or Employee, states, "A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following" and it goes on to innumerate several points including: "(8) The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment. "(9) An act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid if the employee would not have been liable had the statute been valid. "(10) The act or omission of anyone other than the governmental entity or the governmental entity's employee." And "(22) An act or omission performed in good faith under the apparent authority of a court order described in IC 35-46-1-15.1 that is invalid, including an arrest or imprisonment related to the enforcement of the court order, if the governmental entity or employee would not have been liable had the court order been valid."

That being said, lawsuits can still be brought against departments and individual officers for failing to do a proper "investigation." Some officers simply fill out a report and are done with it. Some interview some witnesses but not all... or they use the information from select witnesses and ignore the statements of others. More good news is that lawsuits against government entities frequently end in summary judgments for the defense based on immunity grounds.

The bad news is that such lawsuits still cost a bundle to defend plus they bring untold embarrassment to the officer who botched the job and the agency that dropped the ball as far as training the officer is concerned.

If not malfeasance, how about negligence? To succeed in negligence action, plaintiff must establish: a duty on part of defendant to conform conduct to standard of care arising from relationship with plaintiff; failure of defendant to conform conduct to that standard; and injury proximately caused by breach of duty. [Westlaw 674 N.E. 2d 580, page 1.]

Does your agency have written policies and procedures outlining what the standards are in various situations? If not, why? And if so, are the officers adhering to those standards when conducting accident investigations?

One state case came about because the highway patrol "... had no policy regarding how to secure an accident scene (where to put flares, when to block the road, etc.) and that the state patrol's lack of a policy regarding crash scene management was negligent and put the victim in harm's way." According to one source, some jurisdictions have laws or rules and regulations stating that an officer "can be removed from office for dereliction of duty." Such things as "failure to investigate" may fall in this category.

There is some case law that shields officers and municipal agencies in certain circumstances. …

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