Dealing with Litigation
Nowicki, Ed, Law & Order
Something in today's society seems to frighten even the most experienced law enforcement officer. It is civil litigation- litigation alleging law enforcement officers and their agencies violated an individual's civil rights under color of law. Sad, but unfortunately true, it seems that most officers would rather face a criminal with a firearm than an excessive force lawsuit. After all, the firearms confrontation is usually over in a matter of seconds, while an excessive force law suit can last years. In fact, I offer my services as a law enforcement use of force expert to the criminal justice community and currently I have a case that is over 17 years old! Whose life has been impacted more, an officer involved in a justified shooting with no litigation, or an officer involved in a justified shooting who has been in an out of the courts for years?
For most law enforcement officers, seeing their names as defendants on court papers is a complete shock. After all, officers usually create defendants not become them, and there is a very big difference between criminal court and civil court. Preventing litigation will be addressed in a future column. This column will be a basic foundation on how you and your agency can deal with and understand what is going on once you find out that you have been named in litigation involving excessive force under Title 42, Section 1983 of the U.S. Code-where you, and most likely your agency, are alleged to have violated an individual's civil rights under color of law.
Once any officers are named in litigation and the agency and officers are served with the complaint, it's time to notify the head of the agency- such as the chief of police- and the highest elected governmental official. The chief and mayor may also he named in the law suit. Next, legal representation should be notified, usually a corporation counsel or the insurance company that insures the governmental entity. If there appears to be a strong foundation for the charges, the lawsuit may be settled before trial.
In the initial stages, it is important to find out if all parties are or should be represented by the same lawyer and whether or not there are issues of whether a lawyer can properly represent all parties without conflict. If not, this is a time to consider using the same legal counsel, separate legal counsel or even using separate legal counsel with a unified defense. There are advantages and disadvantages to all scenarios, but in all probability there will be a unified defense if the case appears defensible.
The defense attorney representing the officers and the agency should be the focal point for coordinating all aspects of the case. Experienced police officers should not be shy about rendering their beliefs on how the case should be handled. Just because an individual is licensed to practice law in a certain state does not mean that this individual knows all that there is to know about the law. Remember, the best winning percentage that the legal profession can have as a whole is 50%!
During these early stages, your attorney may suggest something shocking to you, like, "let's pay this guy and cut our losses." The rationale is it may cost $100,000 to defend the case and it isn't known what a jury will do. Remember, this is civil court and just a preponderance of evidence for a finding is needed, not guilt beyond a reasonable doubt. A preponderance of evidence in civil court somewhat equates to probable cause in a criminal matter.
So, the plaintiffs attorney initially offers to settle this case for $50,000. Your attorney (who has his weekly paycheck written by the insurance company) may see this as saving at least $50,000 for his employer by paying $50,000 to the plaintiff.
In a way, the attorney is right. The way it works with 1983 law suits is if your side prevails, you and your agency, or the insurance company that insures your agency, are responsible for the cost of your defense, which can easily be more than $100,000. …