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The Police Officer's Right to Sue
by Charles Friend

Background

Law enforcement personnel have always been, and always will be, exposed to physical risk in the line of duty. There is an irreducible minimum amount of danger associated with the profession, and those who choose a career in law enforcement do so with the knowledge that the possibility of physical injury or death will always be present.

In the late 1960's and during the 1970's the incidence of line-of-duty injuries rose sharply. In particular, deliberate attacks upon officers increased at an alarming rate. Between 1965 and 1980 the total number of reported felonious assaults on city, county and state police officers increased from 20,523 in 1965 to 57,847 in 1980. The number of officers killed by felons increased from 53 in 1965 to 104 in 1980, an increase of almost 100 percent. Assaults which resulted in serious injuries rose from 6,836 in 1965 to 21,516 in 1980, an increase of almost 300 percent. Although these trends have moderated somewhat in the 1980's and 1990's, the fact remains that today the risk of assault, injury or death still continues to be very much a part of the law enforcement profession.

Less widely publicized, but perhaps equally disturbing, is the remarkable rise in the number of verbal attacks on police officers in this country. While it is difficult to obtain exact figures, it is apparent that within the past few years American police officers (and police organizations) have been subjected to a rapidly escalating barrage of malicious and unfounded public accusations, including both false official complaints and defamatory statements published through the news media. While attacks of this nature cause no direct physical injury to the officer concerned, the damage to the officer's reputation and career, and the protracted legal entanglements which may result from false charges, are often extremely detrimental to the mental, financial, and even physical health of the accused officers and their families.

In spite of the number of assaults, physical and verbal, which have been inflicted upon them, American law enforcement personnel have not generally attempted to utilize the civil courts as a source or redress for the wrongs done to them. While a certain number of civil suits have been brought over the years by police officers for job-related injuries, the number of actions filed is microscopic in comparison with the number of injuries being suffered. The civil remedy simply has not been the tradition response of the American police officer to line-of-duty injuries.

There are several clearly identifiable reasons for this non-user of the civil courts, and an
examination of these reasons is essential to anyone who may be called upon to advise an injured officer about civil remedies.

The Availability of Worker's Compensation

A major factor in the lack of use of the civil courts by injured officers has been the availability of worker's compensation plans. Virtually every police officer in the country is covered through his or her department or agency by some form of plan whereby the officer is, in the event of injury, provided with medical care and protected against loss of income. These plans vary greatly in nature and scope of coverage, and many provide only minimal protection, but most officers who suffer a line-of-duty injury can expect to have direct medical expenses provided for, and to continue to receive salary and other benefits during at least some part of the period of disability.

Furthermore, this form of injury compensation is relatively easily obtained; such plans are generally administered directly through the departments themselves or their governmental bodies, and little or no action is normally required by the individual police officer to initiate a claim and to obtain whatever benefits are provided. Furthermore, when medical bills are covered and no income is being lost, the officer may quite reasonably conclude that he or she has been satisfactorily compensated for the injury and feel no need to pursue the matter in a civil court.

Lack of Awareness of the Availability of Civil Remedies

While this is less of a factor today than it was a few years ago, there is some evidence that until relatively recently many police officers were not fully aware of the variety of civil remedies available or the extent of the compensation obtainable through tort action. For example, while virtually every officer know that a civil right action exists for battery, until recently few would have been aware that the system provides for them in some instances with a right of recovery for mental distress unaccompanied by any physical injury. Again, while most officers would be aware that a tort action can be brought to recover the direct expenses such as medical bills of an injury, some might be unaware of the availability of additional damages, e.g., punitive damages, or an award for pain and suffering.

This lack of knowledge has not been entirely confined to the officers involved. All too often, the attorneys consulted by these officers have failed to perceive possible avenues of recovery through lack of understanding of the lesser-known tort remedies.

Unfamiliarity of both officers and attorneys with the scope and extent of civil remedies has therefore played at least some small part in the non-user of the civil court system by injured officers.

Official and/or Public Discouragement of Civil Suits by Police

Even if the injured officer is aware of the availability of civil remedies and is inclined to pursue them, the officer may be discouraged from doing so by official or public antipathy toward the use of civil remedies by police officers. Law enforcement agencies may, as a matter of policy, attempt to dissuade their personnel from filing civil suits based upon incidents arising in the line of duty. While this intra-departmental opposition may not be expressed openly, or even admitted publicly, it can be brought to the attention of the officer informally but with great force.

In addition, the officer and the officer's department may be affected by opposition from segments of the public outside of the department itself. Civil rights groups, for example, tend to oppose the use of civil suits by police officers, and this opposition may result in pressure being brought to bear upon political leaders to discourage officers from resorting to civil actions.

The Difficulty of Obtaining Legal Representation

The officer considering a civil suit may also encounter difficulty finding an attorney who is willing to bring the action. As noted above, many attorneys are not fully aware of the possibilities open to police plaintiffs in a civil court. In addition, the cost of good legal representation can be substantial, and the officer may not be willing to pay the fees required by the attorney., or the other costs associated with the civil litigation. In most localities, of course, plaintiffs' attorneys habitually accept cases on a contingent fee basis whereby an attorney will be paid an agreed upon percentage of the eventual recovery, if any. Unfortunately, for reasons described below, attorneys are often reluctant to accept police plaintiff cases because they fear that even if a favorable verdict is obtained in court, they will be unable to collect the judgement, so that the net recovery - and the resulting attorney's contingent fee - will be nil.

The Difficulty of Obtaining a Judgement

An additional deterrent to civil action is the difficulty of obtaining a favorable judgement under the existing legal system. American tort law has, in some areas at least, developed a definite anti-police bias, which serves to block recoveries in many instances in which a wrong has unquestionable been done to the plaintiff officer. Thus, for example, the police officer may be confronted with complex legal defenses which deny to the officer the rights of the civilian citizen, or protect certain privileged defendants from the consequences of their wrongful acts. Because of these discriminatory rules, certain types of civil actions may see to the injured officer to present such difficulty as to become, if not impossible, at least unprofitable to pursue.

The Difficulty of Collecting a Judgement Even if the Officer Wins the Case

As noted in the discussion of the problems of obtaining legal representation, many attorneys shy away from the police-plaintiff cases because they believe that, while the officer has a strong legal case and will obtain a favorable verdict in court, they will be unable to collect anything from the defendant after the judgement is rendered.

In certain types of cases, at least, this is a significant consideration, as for example, in actions for battery. Unfortunately, those most likely to commit battery on police officer are also those least likely to have substantial pecuniary assets with which to satisfy a judgement even if one is obtained. Consequently, both the officer and the attorney may consider it a waste of time to bring an action when it seems likely that any resulting judgement will be a hollow victory, with no money ever actually being collected from the indigent defendant. In some instances, of course, the officer may wish to bring the suit as a matter of principle, or to obtain personal vindication; but these suits are relatively few, and in such instances the attorney will probably require payment by the officer
of a flat fee in advance.

The Attitude of the Individual Officer

Although the difficulties discussed above are formidable, one of the most significant causes
underlying the traditional lack of use of the civil courts by injured officers is the attitude of the officers themselves.

While individual officers are different, and therefore view the issues differently, certain common patterns of thought can be discerned. In the first place, as noted above, there is often an inherent distrust of the court system in general and of lawyers in particular. This leads to a feeling that there is no point in wasting time attempting to use a system which is basically hostile to the police officer, or which will place the officer's fortunes in the hands of lawyers, of which the police officer has not usually received a very favorable impression.

Secondly, there has quite commonly been a feeling among police officers that physical injury, or at least the risk of it, is just "part of the job," an occupational hazard which should be accepted without complaint. Most officers take pride in being members of the law enforcement fraternity, but this is unfortunately often accompanied by a feeling of isolation from the civilian world. This strong sense of in-group identity in turn often leads to the feeling that it is not proper to complain to persons or institutions outside it, or even to the department when an injury is received. Fear of loss of face or even open ridicule by brother officers may play a part here also, particularly where the injury is minor or of a strictly technical nature. In short, no one wants to appear to be a
"crybaby."

This complex combination of pride and antipathy has historically discouraged many officers from filing civil suits; but, as will be noted later, this attitude seems to be changing rapidly today, especially where the case involves something other than the most minor physical or technical injury.

Trends in Civil Litigation by Police

Despite the difficulties described above, and the historical lack of use of civil remedies by law enforcement personnel, it appears that the trend is now toward increasing use of the civil courts by police plaintiffs. This trend has manifested itself in several ways. First, there is a distinct increase in the number of cases reaching both the trial and appellate courts in which police officers are the complainants. Secondly, law enforcement related publications are taking an increased interest in the subject. Even the news media have taken note of the development. There are several factors which have contributed to this, and, again, an understanding of these is important to anyone involved in this are of the law.

Increased Police Awareness of Civil Remedies

The past few years have brought about changes in the law enforcement personnel themselves. Today's officers have a greater awareness of social issues in general and of their own rights in particular. This increased awareness is evident in the internal relationships between officers and their departments as well as in the officers' increased use of civil remedies against persons outside
of their agencies.

Increase in the Number of Injuries being Suffered by Officers

One very obvious cause of the increase in civil actions by police plaintiffs is the increase, as discussed earlier, in the number of injuries (physical and verbal) being inflicted annually upon officers. A greater number of injured officers mean a greater number of tort claims by injured officers.

Attitude of Officers Toward Certain Types of Injury

Another factor, perhaps not quite so obvious, seems to be operating here also. It appears that while the average officer has been reluctant to bring a civil action for a physical assault (particularly where the actual injury is minor), a different attitude may be adopted when it is the officer's reputation which has been damaged. Although precise statistics are lacking, it appears that a large percentage of the civil actions being filed by police plaintiffs are for injuries related to reputation-libel, slander, etc., rather than for injuries to the body. Clearly, many police officers do not regard unjustified verbal attacks upon their professional or personal reputations as being "just part of the job," and they are more ready to seek vindication in court for injuries of this type.

This attitude is of particular significance when one considers that, although both physical and verbal attacks upon police officers are increasing in frequency, the increase in verbal assaults seems to be proportionately greater. The emergence of the false complaint as a deliberate tactic to harass the police has caused a disproportionate increase in this type of attack. This trend, coupled with the difference in attitude being exhibited by officers towards verbal assaults, has undoubtedly accounted for much of the overall increase in police plaintiff suits.

Increase in Litigation against Police Officers

In the past two decades there has been an astronomical increase in litigation against police officers. In certain urban areas of the country, suing the police has become so commonplace that virtually every contact between police officer and civilian carries with it the threat of civil action against the individual officer, his supervisors, the department as a whole, and the city itself. Police civil liability has become a topic of such importance that instruction in the subject is routinely given in police training programs, independent organizations, such as Americans for Effective Law Enforcement Inc., conduct regular workshops for police supervisors to prepare them to deal with the problem, and some departments, e.g. Los Angeles, have even established special divisions or task forces to investigate civil complaints against them.

This increase in litigation against police has, in addition to making law enforcement personnel more aware of the civil side of our legal system, caused many officers to decide to stop being legal sitting ducks and fight back against this "sue-the-cop" trend by utilizing the very same weapons that are being employed against them - lawyers and lawsuits, injunctions and money damages. The reasoning is simply that "if they can do it, why can't I?"

Encouragement of Police Plaintiffs by Law Enforcement Organizations

Injured officers are not being openly encouraged by interested organizations to bring civil actions.  Police associations have been particularly active in this regard. For example, police associations in New York, Texas, California, and Pennsylvania are reported to be openly and actively promotingthe filing of civil actions by their members, or, in some cases, filing the actions themselves. In some instances, this encouragement has been accompanied by a policy of making legal counsel available to officers interested in filing civil actions. This encouragement has not been confined to local police associations. The International Union of Police Associations openly advocates the use of the civil courts by injured officers, and have provided interested officers with information and guidance towards that end.

Each of these factors has contributed to the increase in litigation by police. The list is not necessarily complete, of course. There are other factors which operate in individual cases to encourage the bringing of civil suits. The point is that, whatever the reasons, the civil action is beyond doubt being increasingly used by American law enforcement officers.

Justification for the Use of Civil Actions by Law Enforcement Personnel

This increasing willingness of law enforcement officers use civil actions is not being regarded with approval by all segments of our society. In fact, as will be noted subsequently, there is substantial opposition to the trend from such varied sources as civil rights groups, the news media, and even law enforcement agencies themselves. A quick examination of the justifications being offered for the increased use of the civil suit by police plaintiffs is therefore necessary.

Compensation of the Injured Officer

The first and foremost obvious justification for the filing of any civil suit is the compensation of the injured plaintiff. This is the purpose of our system of tort law - to compensate those who have been injured by the wrongful acts of others. An elaborate system has been developed over a period of several centuries to accomplish that goal, and, with certain exceptions, the system does not distinguish between police officers and plaintiffs engaged in other occupations.

It is true, of course, that police officers are normally covered by some form of employee
compensation plan applicable in cases of line-of-duty injuries. As previously noted, however, these plans normally provide only for direct medical expenses and continuation of income, and even these benefits may be subject to severe limitations as to duration and amount of coverage. In addition, they are applicable only in cases of illness or physical injury; injuries to reputation, for example, are beyond their scope.

By contrast, tort law provides remedies for injuries of all types, whether to the body, the mind, the reputation, the career, or just the technical rights of the officer. Further, even in a physical injury case, the damages obtainable in a civil action in a court of law are far broader in scope that those provided by even the most liberal worker's compensation plan, and jury awards may reach figures unheard of in administrative compensation hearings.

In addition, although the acceptance of worker's compensation benefits usually precludes any further recovery from the employer, it does not normally prevent the bringing of civil suit against a third party. Therefore, the officer may often collect benefits from the employing agency under an employees' compensation plan and, in addition, file a civil suit against any third person or persons who actually inflicted the injury. Thus, the officer may often be entitled to obtain compensation through both channels.

Although sometimes condemned, this double compensation is perfectly lawful and is justifiable upon at least two grounds. First of all, it is entirely consistent with a long-established tort doctrine know as the "collateral source" rule, which holds that a wrongdoer is obligated to pay for the full consequences of the wrong done, and is not entitled to escape any portion of that obligation by virtue of any benefits paid to the plaintiff by others. Secondly, in the event that an officer who has received benefits from an employee compensation plan should recover a civil judgement against a third party wrongdoer, the officer will, in many instances at least, be required to reimburse the city
or other governmental agency for any benefits received from the employee compensation plan.  This relieves the burden on the taxpayers, who would ultimately have borne the cost of the injured officer's compensation under the employee benefit plan; prevents the officer from receiving the "double compensation" which some find so objectionable; and places the financial burden where it belongs - on the wrongdoer who caused the injury to begin with.

Prevention of Similar Attacks in the Future

Advocates of the use of civil remedies by police personnel have emphasized the potential value of such suits as a deterrent to similar attacks on other officers. This reasoning has been responsible in large part for the encouragement of civil suits by police associations, which view this as a means of countering the growing flood of physical and verbal attacks and unfounded litigation against police officers. For example, following the filing of a $2,000,000 lawsuit against the Progressive Labor Party for injuries to nine policemen during a "demonstration," Mr. Jerry D. Trent, a director of the Los Angeles Police Protective League (LAPPL), was quoted as saying that one of the reasons for
the filing of the suit was "to let groups like the Party know that unprovoked attacks on our police officers simply will not be tolerated." Mr. George Franscell, attorney for the LAPPL, stated flatly that "what we are trying to do is make people understand they can't go along killing and maiming police and get away with it." Similar statements have been made by officers or attorneys of the Dallas, TX, Nassau and Suffolk counties, NY, and Delaware county, PA police associations.

It is questionable whether the increased use of civil litigation by police officers or associations will have any effect on "heat-of-passion" physical attacks on police officers by individuals. Such attacks are, of course, already punishable under criminal laws, who sanctions are far more severe than mere money judgements. On the other hand, many advocates feel that criminal law is now so heavily weighted in favor of the accused that it no longer represents a significant deterrent to any type of crime. If that is indeed the case, the certainty of civil action might be of some value in causing at least some potential assailants to have second thoughts, especially in the case of groups which advocate violence as a matter of policy.

The deterrent effect may be most noticeable in other types of cases, however. As previously noted, a major problem confronting law enforcement today is the increase in false complaints and unfounded civil litigation against officers and their agencies. Unlike most physical assaults, these verbal attacks are usually carefully premeditated, and are often launched only after legal counsel has been obtained by the complainant. The knowledge on the part of the prospective complainants (and their counsel) that civil penalties will be invoked for the filing of unfounded charges or legal actions may at least serve to discourage those persons - and their numbers appear to be substantial - who make complaints or file suits against the police with full knowledge that the charges have no basis in fact or law.

Much of the opposition to the use of civil suits by police officers centers about this latter point.  Many feel that to encourage - indeed, even to permit all police officers to bring lawsuits against citizens will have a "chilling effect" upon people who have legitimate complaints against the police.

This argument does not impress advocates of increased use of the civil courts by police. They point out that, in the first place, those with legitimate complaints have no reason to fear civil action by the officer concerned, since only unjustified charges are wrongful under tort law, and that statistics indicate that the vast majority of official complaints and lawsuits filed against law enforcement officers are later proven to be unfounded and, in many instances, malicious.

There is one additional and very persuasive argument made by those who favor the right of police officers to bring civil action; they point out that police officers are citizens too. Why, is it argued, should the police officer who is shot, or stabbed, or beaten, or defames, have fewer civil rights that any other person? Police officers suffer pain, and bleed, and die, like everyone else.  They leave behind families who grieve and suffer financial hardship, just like everyone else. Why then, should they be denied the rights to protection and compensation that our legal system accords to every other citizen? The Supreme Court of the United States has upheld the law enforcement officer's right to sue. Many feel that the right should be exercised.

This position has been summarized very nicely by Col. Adam G. Reiss, Superintendent of the Ohio State Highway Patrol: Law enforcement officers have the same rights as private
citizens. Where any officers are injured civilly in the performance of their duties, they
have the right, and even a moral obligation, to file suit.