Webinar presenter Wayne Beyer answered a number of your questions after his presentation, What Happens When You Get Sued: The Civil Litigation Process for Law Enforcement Officers. Here are just a few of his responses.
Audience Question: Can you briefly discuss the question of spoliation and the importance of ensuring that potentially relevant evidence such as personal notes and records aren’t destroyed while litigation remains pending? And while you’re answering this maybe you could define for the rest of us what spoliation is.
Wayne Beyer: Right. It means the destruction of evidence that could be used in a case and that’s an excellent point. I think most police departments realize this and have specific retention schedule but one of the first things you do as a lawyer coming into one of these cases, is you write a what they call a hold letter. You write the lawyer for the department or the chief or whoever the responsible official is going to be a letter explaining that the lawsuit has been brought, what it’s about, and to try to list every potential documents or records that may be related to the case to tell them to retain them, to copy them, not to lose them, not to destroy them because what can happen is if there’s something relevant that’s been destroyed; let’s say for example company decides they want to erase the body-worn camera footage. There can be damages awarded. The jury will be advised that you’ve destroyed evidence and there’s an adverse inference that the evidence that you’ve destroyed could be helpful to the other side, in other words, the plaintiff side but that you’ve destroyed it, that’s the issue really.
Audience Question: How realistic is the worry of getting sued? If you watch TV these days you think that it happens after every traffic stop. How often does this really happen?
Wayne Beyer: It’s very very rare. I will give you some statistics. There are about 62 million police-citizen contacts a year in the United States, about 10 million arrests. What you see sadly on television is a very very small percentage that a layperson may be led to believe is representative of what’s going on in police departments and I’m sympathetic to how hard it is now to be a police officer. When I was doing these cases for DC, I presented a program. I think the date is probably still pretty good but the numbers may be a little off because it was quite a while ago but they would do fifty-five thousand arrests. They had I think it was a million calls for service a year. They had fifty-five thousand arrests a year in the district of Columbia. Most people would submit to arrest with no event regardless of the seriousness of the charge but a few because of this primordial fight-or-flight response, the way people get hurt in these incidences, they don’t respond appropriately to the presence of the police officer and so for whatever reason they flee or they fight or they try to do both: flee and fight. Now, out of the fifty-five thousand arrests, we had about a hundred lawsuits a year, a minuscule number and out of the hundred lawsuits a year, the plaintiff would get a recovery of some level about fifty-five times. If you do the arithmetics, you could get a recovery of about one in every thousand arrests for whatever the subject, police brutality, faults, arrests, etc. Now, there were a handful of very serious cases I represented in the city during the 90s and later as well, but when there was a series of police shootings based upon shooting a vehicle, they want to pull off a surprise because the DC police was shooting a vehicle to keep them from leaving the scene or shooting at the people in the vehicle and there were, I forgot the exact number but let’s say 20 or 30 fatalities in a fairly short period of time and when they changed the general orders on that, the numbers of shooting on vehicles, the numbers went way down but it is not if you were to watch television you would say it’s a serious problem. Even though Eric Holder some of the time, I was there with the US attorney, I never had, despite and some pretty outrageous back patterns, I never had an officer prosecuted for a crime involving a fatal shooting even though let’s say I had probably three or four dozen fatal shootings while I was working for the city in a 10-year period. One I can remember where an officer had been found guilty of assaulting somebody who is I guess between transport and the sally port at the police department. It was a relatively minor assault but I think he has been found guilty in the case and because of that, we had to settle. Anyway, I’m sympathetic to the problem police officers have because of the public perception of it.
Audience Question: Can social media be used against an officer even if it’s supposedly a private group like a private Facebook group or a private LinkedIn group?
Wayne Beyer: I’m disadvantaged for two reasons. One, I think I don’t quite understand the question. The other is I’m not a good social media person. I lived most of my life without social media. I recently signed up for Facebook just to find out what my high school class was doing and now I get these dozens of things from people, some of the people I know. I don’t know how Facebook knows that I know these people. I don’t know what you can do in terms of social media. I’m sorry I can’t really give you a very good answer to that question.
Audience Question: In some professions like construction, there’s a thing called errors and omission. Do those types of insurances apply here? Should officers be carrying additional insurance to protect themselves as well?
Wayne Beyer: For the most part, no. Your homeowner’s insurance isn’t going to cover you either for the police job or for an off-duty job, secondary employment. I think it’s hard to get insurance for that. On-duty or off-duty, as long as you are performing a police function, you should be covered for that. The problem is in the off-duty type of employment. A lot of enforcers have to get permission. There was a policy in DC that you have to get evidence of insurance if you have an off-duty job. Typically that insurance only covers stuff like worker’s comp or if you injure somebody through your negligence, not to an intentional act. I don’t know that you can get the insurance that covers for assault but if you as a law enforcement officers have an off duty that entails the potential use of force and I’m thinking mostly being a bouncer of a club, not selling at a retail store something like that. That’s where I think you would look at it. Again typically, intentional acts like assault, false arrest and so on are not covered by private insurance that you would get. I don’t recommend that officers try to buy private insurance certainly not for the part of their job that would cover them anyway.
Audience Question: Is there a statute of limitations on how long a plaintiff has to file a case against a law enforcement officer?
Wayne Beyer: The answer is yes. Whatever the general statute of limitations for the state is. 42 USC doesn’t have its own statute of limitation so it so-called borrows from the state law whatever the state statute of limitations is. The general statute of limitations so it would be the one for ordinary negligence. In my experience, it is usually something between 3 and 6 years something like that. The plaintiff has the obligation to file within that period. There are somethings that stop or stall a statute of limitations from running. One is if you’re a minor, you get additional time once you reached the age of majority. The other is if you have been in prison and so it’ll stop typically during the time that you’re in prison. There is a statute. It is governed by whatever the state law is for the so-called residual or general statute of limitation. A lawyer who represents the department will be able to tell you what that is for these cases.
Audience Question: How effective are estate planning measures such as an irrevocable trust in walling off potential creditors in the case that there is a civil liability. Assuming the transfer of assets occurs prior to the anticipated litigation without the intention of defrauding creditors. Is an officer with an irrevocable trust more judgment proof?
Wayne Beyer: I was supposed to get easy questions. I’m not so sure because I’m trying to remember what revocable trust is. I don’t think that officers should, in general, be really concerned about transferring personal assets. If you’re doing your job for the police department, the department has an obligation to protect and to cover you if you’re sued. It depends I guess when the transfer happens – I don’t remember. I’m a trial lawyer, not an estate lawyer. I guess I really have to summon up my memory on what that does. I don’t think irrevocable trust protects your assets. You put your house in a trust and you’re the trustee of the irrevocable trust. I think it is probably reachable by creditors but I don’t want to give you that official legal advice. I think I mean I know people from when they transfer to a spouse or something like that. If it’s a legitimate transfer then you have given up all ownership right let’s say to your house, I don’t think it is reachable by creditors. You never know. Your spouse may be involved in an auto accident and you have very limited insurance. It’s sort of considered dirty pool to go after somebody beyond the limits of their automobile policies. Let’s say it’s a catastrophic event and your policy is limited to $50,000 if possible. Somebody’s going to after you for that, above that. As I said it is considered a dirty pool to do that but it doesn’t mean people can’t do it legally. I don’t know that there’s much benefit in trying to transfer assets. I’d say that’s unofficial advice. It’s free it’s worth what you pay for.
Audience Question: Is it common to have multiple counts listed in a suit, for example, failure to train, failure to supervise, deliberate indifference, etc.?
Wayne Beyer: Yes. What the plaintiff will do in a suit is to lift all of the potential claims. So you’re going to have the 1983 claims and then you’ll have the counterpart state law claims. And now one of the new ways the plaintiffs are doing it is you know the ADA and the ADA can be supplemental to this. Americans with Disabilities Act. One of the current trends is this big issue about emotionally disturbed persons with knives and whether there is an obligation of police officers to try to de-escalate a situation and if you can’t get the de-escalation theory across in the 1983 claim, you will then make an ADA claim saying that they are the type of the person who is a mentally ill person with a knife who is entitled to a reasonable accommodation for their mental illness and the way you have attempted to take them in for arrest. Whatever doubt there, the plaintiff will file. It’ll be typically multiple counts.
Audience Question: When you’re talking about reasonableness or reasonable officers, does that just mean any officer or is it more of a peer comparison? One with similar experience, similar background working in similar situations. By comparison, a cop with 15 years of experience on the job may have different judgments, different experience, different expertise than someone who was just expunged from the job? Does reasonableness take that variance into consideration?
Wayne Beyer: Probably not. I think if you’re hypothetically reasonable, it is a reasonable, well-trained officer that really the standard regardless of age. One variation on that maybe when you are dealing with the issue of reasonableness and force, the size and age of the subject, of the size and age of the officer maybe considered. Let’s say a much smaller officer dealing with much bigger subject or a female officer trying to deal with a large male officer. That’s something that you would consider in the reasonableness calculus in terms of whether the force was reasonable or not. I think the level of the experience of the officer is probably not part of that because you want to start with the idea that it’s going to be a reasonably confident, reasonably well-trained officer and know it’s not, do you say to this one officer it’s sort of the pool of officers if you have a room of let’s say, hypothetically you have 20 officers to review the same incident. Is there a consensus on whether or not the act was under the 4th amendment was reasonable.
Audience Question: When a plaintiff seeks damages punitive or not, will the agency’s insurance company cover the officers civilly?
Wayne Beyer: Yes. In terms of first is this a covered claim? And then is there, are they going to pay a settlement or judgment? There are times I was the outside counsel for the self-insurance pool in New Hampshire for about 10 years. Their cap was a million dollars. Theoretically, if the insurance was exhausted, the city or the town or the county, we’ve represented half the counties in the state, if they exhausted the level of insurance the town or the city could be held liable for it. As long as it’s a covered claim, yeah. Apart from some of the scenarios we discussed, yeah the officer should be covered.
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