Liability Implications of Departmental Policy Violations
Hall, John C., The FBI Law Enforcement Bulletin
A law enforcement agency's internal policies should provide clear guidance and a basis of accountability for important law enforcement functions, such as arrest, use of deadly force, and vehicle pursuits. However, it has become a commonly held perception within law enforcement circles that a police officer's violation of department policy is a valid basis for a lawsuit against the officer and perhaps even the department.
The frequency with which plaintiffs raise the issue undoubtedly perpetuates this view, with potentially unfortunate consequences for agencies and communities. For example, law enforcement executives may be reluctant to develop otherwise appropriate policies if they believe that in doing so they are increasing the risks of liability for themselves and their officers. Moreover, otherwise defensible lawsuits may be unwisely settled by agencies under the erroneous belief that an officer's mistakes in applying policy render the case indefensible in court. This article discusses those misconceptions, clarifying the liability implications of policy violations in general, and deadly force policy violations in particular.
The basic formula for any lawsuit is 1) existence of a legal duty owed by one party to another, 2) an alleged breach of that duty, and 3) injury or loss resulting from that breach. Legal duties may arise in a variety of contexts, but most generally are established by custom, statute, or constitutional law. Whatever its source, a legal duty must be owed to the plaintiff by the named defendant in order for a civil suit to be viable. That being the case, a departmental policy must create a legal duty to a potential plaintiff before a violation of that policy can create liability.
In reality, whether a policy violation is even relevant to the question of the legal liability of an officer or department depends to a large extent upon the nature of the claim and the forum in which it is brought. For example, policy violations in tort claims brought under state law alleging negligence will generally be treated differently than claims brought under federal law alleging violations of federal constitutional rights. The relevance of departmental policy also can depend upon whether a legal duty, or standard of conduct, is clearly delineated by law, or whether it is determined by reference to custom or practice.
State Tort Claims
A simple tort claim alleges that the defendant breached a legal duty owed to the plaintiff, there-by causing injury or loss. The breach of that duty may have been intentional or merely negligent. In deciding whether there was a legal duty, and whether the defendant breached it, the courts have looked to statutory law as well as custom and practice in the particular area of law enforcement activity.
While these principles generally are most relevant to private parties rather than public agencies and employees, most states have adopted statutes that permit tort claims against public entities under some circumstances. In such cases, where there is no clearly delineated standard established by law, the courts frequently reference departmental policy as "evidence" of a duty owed, or an appropriate standard of conduct. In such cases, an officer's violation of the department's policy may be used to establish legal liability.(1)
Conversely, a policy violation should not be relevant if the appropriate legal standard of conduct is already clearly established by law. For example, if a state statute permits an officer to use deadly force to prevent the escape of a fleeing dangerous felon, a more restrictive policy standard that prevents deadly force in such circumstances should not be substituted as a legal measure of the officer's conduct. The public's interest in effective law enforcement is not served if law enforcement agencies are not free to create stricter standards of conduct for their officers without also creating higher risks of liability. …