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Accreditation and Civil Liability

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Judicial Marshal AcademyRichard P. Terbrusch, Accreditation Manager,
Connecticut Judicial Marshal Academy                          

Accreditation programs, such as the Commission on Accreditation for Law Enforcement Agencies (CALEA®) Law Enforcement Accreditation program, can potentially reduce law enforcement civil liability by making it difficult for plaintiffs to sustain their claim. The rationale that underlies such a premise is straightforward: the voluntary application of professionally developed standards fosters the implementation of what the private sector would call “best practices.”  The accreditation process contains a self-documenting system of accountability and independent verification. The principles of accreditation – professional standards, documentation, and accountability – can therefore supply the documentary evidence and persuasive authority necessary to demonstrate that the police did in fact act within the bounds of the lawful authority.

The positive effects of accreditation on insurance costs are well documented, and provide a useful quantitative foundation to the analysis of accreditation’s potential effect on civil liability.[i]  The CALEA website lists at least four risk management studies that suggest accreditation works to reduce the costs of insuring law enforcement operations because agencies which are accredited can experience fewer claims.

For example, the Miami Valley Risk Management Association found that police claims, which represented the single greatest exposure in terms of insurance claims for member cities - 41% of the total losses, were lower for accredited police agencies.[ii]  In another study conducted by the Colorado Inter-local Risk Sharing Agency (CIRSA), it was demonstrated that costs for property and casualty claims for accredited police departments, on a per capita basis, were 52.2% lower than the non-accredited police departments.[iii]  A similar study by the Tennessee Municipal League (TML) concluded that accredited agencies within their group experience a liability loss rate that is 11% lower than non-accredited agencies.[iv]  Finally, the Intergovernmental Risk Management Agency (IRMA) found that accredited agencies experienced 16% fewer claims per 100 officers as compared to non-accredited agencies and 35% reduction in severity or payouts per 100 officers.[v]

While the studies certainly suggest a causal link between accreditation and liability reduction, they do not explain how certain aspects of the accreditation process may be used during the civil trial process. At least one department claims to have incorporated accreditation into their defense strategy with positive results.[vi]  That agency reports that several lawsuits have been dismissed from the court system in part because of documentary evidence and testimony produced by the accreditation process.[vii]   What follows in the next paragraphs is an analysis of how the principles of accreditation can be used to defend law enforcement officers and departments against claims brought pursuant to title 42 U.S.C. §1983.[viii]

Section 1983 of title 42 of the United States Code is used by plaintiffs to allege a variety of constitutional torts such as excessive use of force or false arrest.  Section 1983 was passed in 1871 and was originally called the “Klu Klux Klan Act.”[ix]  It was intended to provide a mechanism for individuals to sue state officials in federal court for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States.[x]  The law was not very effective for the first ninety years after passage.[xi]

Section 1983 became an effective tool for suing state officials in federal court in 1961, when the United States Supreme Court decided Monroe v. Pape[xii] 365 US 167 (1961). In Monroe the court articulated three reasons for the statute:

  1. To override certain kinds of state laws.
  2. To provide a remedy where the state’s law was inadequate to provide a remedy.
  3. To provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.[xiii]

Monroe opened the door to the development of constitutional litigation as means of reforming state and local government practices.[xiv]  This type of litigation is also known as constitutional torts. In the years since Monroe, section 1983 litigation has continued to grow. From 1990 to 2000 the total number of civil rights complaints filed in United States District Courts increased by 216% (from 18,000 to just under 41,000).[xv]  While not all of these suits filed were related to police operations, the statistic gives the reader a good idea of how civil rights litigation continues to grow.[xvi]

To establish a prima facie case under section 1983, a plaintiff must allege two elements: (1) that the state official was acting under the color of law and (2) that he or she was deprived of constitutional or statutory rights by that official. With respect to the first element, whether an official is acting under the color of state law, the rule is generally well settled. Any state action taken under the Fourteenth Amendment is action under the color of law for the purposes of section 1983 litigation.[xvii] Thus, government employees act “under color of law when performing their duties, whether they act in compliance with state law, or contrary to it, or they exercise professional discretion.[xviii]  Cities and towns act under the color of law because they are governmental entities created by state law.[xix]

With respect to the second element, a plaintiff must allege a violation of a constitutional or statutory right. It is important to note that section 1983 does not confer substantive rights – it only allows one to bring suit for a deprivation of an established constitutional or statutory right. Thus, there are three basic types of claims:

  1. Claims under the substantive component of the due process clause (i.e. marriage, family, procreation, and bodily intrusions or excessive force in non-seizure or non-prisoner cases).[xx]
  2. Claims under the procedural component of the due process clause (i.e. life, liberty, or property). [xxi]
  3. Claims for the deprivation of specific rights denoted in the Bill of Rights, that fall under the Fourteenth Amendment through the principle of incorporation.[xxii]

Once a plaintiff establishes their prima facie claim, what must the plaintiff prove to the jury?  Section 1983 claims are very fact-specific and thus, what facts the plaintiff must prove in order to prevail differs for each type of claim. It is in this phase of the trial process where the principles of accreditation – professionally developed standards, documentation, and accountability – can help most.

In order to illustrate the point, let us consider the following fact pattern. Assume that the plaintiff was arrested for disorderly conduct and claims he was subsequently beaten while in custody and then denied medical treatment. The defendant police officers and department claim that plaintiff assaulted city police officers at the time of the arrest and that the force that was used to subdue plaintiff was reasonable. Defendants also claim plaintiff subsequently refused medical treatment. Plaintiff sues, claiming among other things, excessive use of force and failure to supervise.

Supervisors can be subjected to section 1983 liability for their subordinates’ actions if the supervisor’s acts or omissions are the proximate cause of the constitutional tort inflicted on plaintiff. Although the Supreme Court has yet to rule on the specific degree of fault that is necessary to trigger liability for a subordinate’s actions, there are nevertheless, three types of acts or omissions that could trigger liability: 1) the supervisor failed to take corrective action to remedy the unconstitutional action; 2) the supervisor either created or allowed to continue a custom, policy, or practice under which the unconstitutional action occurred; and 3) the supervisor was grossly negligent in supervising and managing the subordinates who caused the wrong.[xxiii]  Therefore, where a supervisor knows that a subordinate has a propensity for misconduct, and the supervisor fails to properly supervise that subordinate, the supervisor could be held liable for the constitutional torts of the subordinate.[xxiv]

In Fiacco v. City of Rensselaer[xxv], the Court of Appeals held that a pattern of excessive force complaints which were not fully investigated was sufficient evidence for a jury to conclude that the City had a “policy of non-supervision of its police officers” and a “deliberate indifference to their use of excessive force” despite the fact that procedures for investigating such complaints existed.[xxvi]

A typical jury instruction for supervisory liability situation, such as the one described above, the plaintiff must prove to the jury:

  • That the defendant used excessive force on the Plaintiff, and
  • That the defendant’s supervisor knew that the defendant was about to use excessive force, or
  • That the defendant’s supervisor knew that the defendant had a practice of using excessive force in similar situations, and
  • That the defendant’s supervisor approved, assisted, condoned or purposely ignored the defendant’s excessive use of force.[xxvii]

Supervisory liability in the above described fact pattern will therefore, in large part, be decided on the evidence and testimony presented demonstrating supervisor’s actions. It is fact specific – what did the supervisor know?  What did the supervisor do or fail to do?  Any documentation that can be introduced to show the jury that the defendant had no such practice of using excessive force, or if he did, that defendant’s supervisor did not ignore it, might tend to counteract the plaintiff’s allegations. What kind of systems or procedures could generate such favorable documentation?

Documentation plays an important role in defending against any section 1983 claim. In Fiacco, the court was persuaded that the response to the excessive force complaints was “uninterested and superficial” in part because the evidence at trial indicated a lack of a documented investigative process.[xxviii]  In response to the excessive force complaints, the evidence at trial showed that the defendant did not open investigative files, make notations, hold hearings, or take written statements from civilians or complainants.[xxix]  The court noted that the “sole investigative act in most instances involved questioning the officers accused.”[xxx]

The three principles of accreditation – professional standards, documentation, and accountability – can help an agency to avoid a situation like that portrayed in Fiacco. There are several standards that require documentation of the type that could make the difference in court – supplying evidence that complaints were carefully investigated and proof that there is a system to identify potential employee misconduct.

CALEA Law Enforcement Accreditation standard 52.1.1 requires that all excessive force complaints against the agency be investigated. If the department in the above cited fact pattern had been in compliance with this standard, it may have been able to demonstrate to a jury it had properly supervised its officers and/or that a particular officer had no history of using excessive force in similar situations. The department would have the necessary documentation to present as evidence – not only about the specifics of the claim but also that it had implemented the standard as general practice, which tends to build credibility with the jury.

CALEA Law Enforcement Accreditation standard 35.1.15 (4.6.9 in the Public Safety Training Academy Accreditation Program) recommends that departments adopt a personnel early warning system that requires a documented review of complaints and performance reviews to detect misconduct before it occurs. At least one recent news article underscored the importance of such a system and its potential for reducing civil rights liability, estimated to be in the millions of dollars.[xxxi]  Applied to the above fact pattern, the standard may again generate documentation that demonstrates to the jury the defendant was properly supervised and the defendant had no history of using excessive force, or if he did, it was properly addressed and not approved, condoned, or purposely ignored.

The use of accreditation standards by courts and attorneys seeking persuasive authority is not without precedent. In Tennessee v. Garner, the Supreme Court referenced CALEA Standards in determining what constitutes proper police policy when applying deadly force.[xxxii]  In Grayson v. Peed, a federal district court cited an accreditation program as proof that sheriff’s deputies were adequately trained.[xxxiii]

The CALEA web page has several testimonials from different departments citing the use of accreditation standards in defending against civil claims.[xxxiv]  Most notably, the Colorado Springs City Attorney’s office has utilized affidavits from an assessment team leader attesting to the Colorado Springs Police Department’s compliance with accreditation standards.[xxxv]  The certificate of accreditation and department policies were even submitted as evidence.[xxxvi]

In the above examples, the principles of accreditation – professional standards, documentation, and accountability – were used to supply persuasive authority and evidence to the court. Although there are no guarantees, when it comes to litigation, the principles of accreditation can tend to build credibility with the jury and counteract plaintiff’s allegations, ultimately protecting both officers and departments from civil liability.

Richard P. Terbrusch is an attorney admitted to the state and federal bar in Connecticut. He currently works for the Connecticut Judicial Branch and is the Accreditation Manager for the Connecticut Judicial Marshal Academy, which received its initial Public Safety Training Academy Accreditation Award in July 2005. The views expressed herein are not intended to convey legal advice and are the author’s own. The author did not receive any fee or honorarium for this article.

End Notes:

  1. See generally CALEA, Risk Management, Liability Insurance, and CALEA Accreditation, at http://www.calea.org/newweb/RiskManagement/riskmanage.htm (citing various risk management studies).
  2. Ibid.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. Sgt. Larry N. Herbert, Accreditation Works, Case Number 22, at http://www.calea.org/newweb/newsletter/No72/case_number_22.htm.
  7. Ibid.
  8. The relevant text of which reads: “Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law….” 42 USC §1983.
  9. Karen M. Blum & Kathryn R. Urbonya, Section 1983 Litigation, 1-2 (Fed. Jud. Ctr. 1998).
  10. Ibid.
  11. Ibid at 2.
  12. Monroe v. Pape, 365 US 167 (1967).
  13. Blum & Urbonya, Section 1983 Litigation, 1-2.
  14. Ibid.
  15. Bureau of Justice Statistics, Civil Rights Complaints in US District Courts (July 2002).
  16. Ibid. The statistics provided in the report do not separate civil rights claims filed against police from other types of cases, such as employment discrimination claims.
  17. Blum & Urbonya, Section 1983 Litigation, 5-11.
  18. Ibid at 5-6.
  19. Ibid at 6.
  20. Blum & Urbonya, Section 1983 Litigation, 13-19.
  21. Ibid.
  22. Ibid.
  23. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).
  24. Ibid.
  25. Fiacco v. City of Rensselaer, 783 F.2d 319 (2nd Cir. 1986).
  26. Ibid at 321-23, 331.
  27. Comm. on Pattern Jury Instructions for the Seventh Circuit, Federal Civil Jury Instructions of the Seventh Circuit, 157 (2005)
  28. Fiacco v. City of Rensselaer, 783 F.2d 319, 331 (2nd Cir. 1986).
  29. Ibid.
  30. Ibid.
  31. see Good Cop, Bad Cop, CNN World News (July 26, 2005).
  32. Tennessee v. Garner, 471 US 1, 30 (1985) (Citing trends in use of force policies adopted by police departments).
  33. Grayson v. Peed, 192 F3d. 692, 697 (3rd Cir. 1999).
  34. See generally CALEA, Risk Management, Liability Insurance, and CALEA Accreditation, at http://www.calea.org/newweb/RiskManagement/riskmanage.htm (case studies 7, 19, 22, and 45).
  35. Sgt. Larry N. Herbert, Accreditation Works, Case Number 22, at http://www.calea.org/newweb/newsletter/No72/case_number_22.htm. (“During the subsequent lawsuit the plaintiffs alleged various constitutional violations including failure to train or properly supervise, along with excessive force. In the city’s defense, affidavits from the CALEA team leader attesting to our compliance with the accreditation standards, our certificate of accreditation and our policies were all submitted in the motion to dismiss. In this case, the plaintiffs voluntarily requested that the case be dismissed prior to ever going to trial.”)
  36. Ibid.
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