Monthly Law Journal Article: Civil Liability for Use of Deadly Force-- Part Three. Supervisory Liability and Negligent/Accidental Acts, 2008 (1) AELE Mo. L.J. 101.

     A federal court jury awarded a total of approximately $97.5 million for the police shooting death of a man who was the former mayor of Cottageville, South Carolina. Damages awarded included $7.5 million in compensatory damages, as well as $90 million in punitive damages--$60 million against the town and $30 million against the officer. The officer who shot the decedent had been hired by the department after being previously fired by a number of other police departments for insubordination, dangerous use of firearms, and other alleged infractions. The officer claimed that the shooting was in self-defense because the decedent threw "wild" punches at him. His attorney argued that the decedent suffered from a bipolar disorder and was enraged during the incident. The plaintiffs contended that the decedent had complained about the officer, who wrote traffic tickets worth over $600,000 from 2008 to 2011, more than any other officer on the force, and that the shooting was retaliatory for the decedent's complaints intended to get rid of the officer because of his aggressive policing. Reeves v. Town of Cottageville, #2:12-cv-02765, U.S. Dist Ct., (D.S.C. Oct. 15, 2014). In an earlier decision, the trial judge commented that evidence of the officer's departure from six other law enforcement agencies in seven years was "obviously admissible" against him with respect to the claim that the town and police department negligently hired, retained, and supervised the officer, and a claim for municipal liability for violation of civil rights. This evidence, the court ruled, had a bearing on whether the municipal defendants properly evaluated the officer's credentials befire hiring him. Reeves v. Town of Cottageville, #2:12-cv-02765, 2014 U.S. Dist. Lexis 120619 (D.S.C.).
     Officers arrested everyone at a party at a residence for unlawful entry, based on the fact that the host had not finalized a rental agreement to live there, and therefore had no right to hold a party there. A federal appeals court ruled that there was no probable cause for the arrest in light of the undisputed fact that at the time of the arrests the officers knew that the guests had been invited there by a woman they reasonably believed to be a lawful resident. There also was no probable cause for a disorderly conduct arrest, as there was no evidence of any disturbance of sufficient magnitude to violate local law. Because a supervising sergeant on the scene overstepped clear law by directing that the arrests be made, the District of Columbia was liable for negligent supervision. Wesby v. D.C., #12-7127, 2014 U.S. App. Lexis 16893 (D.C. Cir.).
     A police officer responding to a woman's 911 call about a fight with her teenage son at her home late at night allegedly raped her. He was subsequently arrested, fired, and committed suicide. The woman sued the police department, asserting claims for inadequate hiring and training, inadequate investigation of a prior sexual assault complaint against the officer, and inadequate discipline and supervision. The trial court held that a reasonable jury could conclude that the officer acted under color of state law, but granted summary judgment for the defendants because the plaintiff failed to prove that they caused the rape or acted with deliberate indifference to the risk that it would occur. A federal appeals court agreed. "The events alleged in this case are tragic, and Officer Coyne's alleged conduct was a terrible crime. The state cannot prosecute Officer Coyne because he is dead, and Ms. Schneider is left with suing his supervisors and employer. . . . to hold [defendants] liable for Officer Coyne's actions, she faces stringent proof requirements under 1983 law, proof she is unable to muster." Schneider v. City of Grand Junction, #12-1086, 2013 U.S. App. Lexis 11247 (10th Cir.).
     A female college student was brought to a hospital emergency room after she passed out at a party. Despite their concern that she might have been involuntarily drugged and then raped, police officers declined to authorize the carrying out of a forensic exam. Subsequently, she sued the District of Columbia, claiming that its police were negligent in failing to investigate her possible sexual assault, and that the District negligently hired, trained and supervised the officers in the area of investigating sexual assaults. Summary judgment was properly granted for the defendant District on these claims. The officers owed a duty to investigate possible crimes to the public, not to any specific individual. Additionally, the officers did not prevent the hospital from administering any forensic test, and had its own independent authority to do so if it wished, but declined to do so. McGaughey v. District of Columbia, #11–7001, 2012 U.S. App. Lexis 14568 (D.C. Cir.)
     In a lawsuit claiming that there was a practice of abusive and unlawful raids of Latino homes by agents of the U.S. Immigration and Customs Enforcement (ICE), high level supervisory personnel were entitled to qualified immunity since the plaintiffs failed to assert any plausible basis to impose liability on them for the purported abuses. Many allegations in the complaint were merely conclusory, and did not adequately set forth a theory of possible liability on the part of the supervisors, such as their knowledge of or acquiescence in unconstitutional conduct. Argueta v. US Immigration and Customs Enforcement, #10-1479, 643 F.3d 60 (3rd Cir. 2011).
     A grandmother claimed that she suffered a heart attack at her home because officers used excessive force during a raid there. In her excessive force lawsuit, a federal appeals court held that the plaintiff failed to present viable claims against three senior police officers involved in the planning of the raid, or against the town based on the actions of its police chief. Officers conducted a "surround and call out" operation at her home aimed at apprehending one of her grandsons. All occupants of the home were ordered to come out, one at a time, with their hands raised. The grandmother, the first out, did not raise her hand as high as the officers ordered, and was told to raise them higher or be shot. A pat-down found no weapons, and she was restrained with her hands behind her back with a plastic zip-tie, and seated on the ground next to a police vehicle, complaining of chest pain. The grandson was arrested, but the grandmother remained restrained and seated while officers obtained a signed consent from another family member to search the house. She continued to sit restrained during the search, but was later taken to a hospital by ambulance for her heart attack. Claims against the three supervising officers who planned the operation lacked merit, the appeals court found, as there was no allegation of any involvement on their part in the alleged use of excessive force, and supervisory personnel cannot be held liable for federal civil rights violations simply as a matter of vicarious liability for the actions of their subordinates. The fact that allegedly excessive force was not used against other women who were in the house indicated that it was not plausible that the supervisors had directed or intended that such force be used during the operation. As to the liability of the town, even if the police chief were its final policymaker, the plaintiff failed to show that any plan of his for the raid was the source of her alleged injury. Santiago v. Warminster Township, #10-1294, 2010 U.S. App. Lexis 25414 (3rd Cir.).
     A police supervisor was entitled to summary judgment in a lawsuit seeking to hold him liable for the actions of officers who allegedly arrested a man without probable cause and used excessive force against him. Even assuming that the officers violated the plaintiff's rights, there was no showing that the supervisor acted deliberately, recklessly, or with callous indifference towards those rights. There was also no evidence that the supervisor actually knew or reasonably should have known that a particular officer would use excessive force during an arrest, particularly when prior complaints about him concerned only verbal exchanges. Gonzalez-Perez, #07-1757, 2010 U.S. Dist. Lexis 43654 (D.P.R.).
     A police director was not entitled to qualified immunity on claims based on the actions of two officers who allegedly interrogated an arrestee for several hours, placed an ammonium packet under his nose, and kicked and punched him. Supervisory personnel can be held liable for constitutional violations carried out by subordinates, based on either personal participation or a causal connection between the supervisor's actions and the alleged violations. If the plaintiff's allegations were true, there had been numerous prior instances in which one of the officers used force on arrestees. These prior incidents, if they occurred, would have been enough to give the director notice of misconduct that was rampant enough to require corrective action, yet he allegedly failed to take any. Williams v. Santana, #09-10198, 2009 U.S. App. Lexis 18014 (Unpub. 11th Cir.).
     A woman allegedly raped by a police officer contended that the city had acted with deliberate indifference to her constitutional rights in failing to properly supervise the officer. She pointed to prior incidents, including the city becoming aware that the officer was dating and having sex with a minor, that he consumed too much alcohol or was drugged at a bar, and that he was found on the rooftop of a building with cracked ribs. She also asserted that he had previously left his badge and uniform with a minor, damaged his patrol car, did not respond in a timely manner to a car accident, and failed to perform a field sobriety test when he finally responded. While many of these incidents were not similar to the alleged rape, the fact that the city and a sergeant allegedly knew of the officer's sex with a minor who could not legally consent justified denying the city's motion for summary judgment on the claim that this made it predictable that the rape was a consequence of the failure of the city to adequately investigate, supervise, and/or fire him. Arnold v. City of San Antonio, #SA-07-CA-877, 2009 U.S. Dist. Lexis 32744 (W.D. Tex.).
    New York City was not negligent in its retention and supervision of a police officer who shot and killed a man while off-duty following a altercation arising from a traffic dispute. There was no information from which the city knew or should have known that the officer, who subsequently was convicted of manslaughter and assault charges concerning the incident, had a propensity for violence. Kelly v. City of New York, 791 N.Y.S.2d 637 (A.D. 2nd Dept. 2005). [N/R]
     347:168 Police chiefs were entitled to official immunity on arrestee's negligent supervision claim; record showed that prior complaints about officer who allegedly used excessive force against plaintiff were investigated and the manner of supervising the officer involved discretionary actions under Texas state law. Dovalina v. Nuno, #04-00- 00738-CV, 48 S.W.3d 279 (Tex. App. 2001).
     341:67 County liable for $767,302 in damages and $77,500 in attorneys' fees to arrestee injured by untrained deputy sheriff during arrest; appeals court upholds liability on the basis of failure to train; plaintiff also awarded $20,000 in punitive damages against deputy. Brown v. Bryan County, OK., No. 98-40877, 219 F.3d 450 (5th Cir. 2000).
     338:25 Male officer, shot and injured by female officer he was living with in a romantic relationship, could not recover damages from New York City on theories that it negligently retained the female officer or negligently allowed her to possess her weapon. Kopec v. City of New York, 711 N.Y.S.2d 505 (A.D. 2000).
     332:122 Federal appeals court overturns $4 million award to family of woman allegedly murdered in her home by deputy who had earlier harassed her; county could not be liable for hiring the deputy as his record did not show him to have ever wrongfully shot anyone before. Aguillard v. McGowen, #97-20039, 207 F.3d 226 (5th Cir. 2000).
     306:90 City and officer who allegedly hit another officer during baton training excercise resulting in disabling injury, liable for $2.35 million in damages; suit claimed negligent supervision by city. Hamilton v. City of Brawley, Cal. Imperial County Super. Ct., No. 84701, Nov. 24, 1997, 41 ATLA L. Rptr. 94 (April 1998).
     297:131 U.S. Supreme Court overturns $800,000 award against county based on alleged inadequate screening before hiring deputy with arrest record who caused injuries to arrestee; single hiring decision could not be the basis for municipal liability in absence of evidence that sheriff consciously disregarded high risk that deputy would use excessive force Bd of County Com'rs of Bryan County, Okl v. Brown, 117 S.Ct. 1382 (1997).
     307:107 Officer investigating burglary of woman's home murders her for her money; county was not liable on theory of 'custom of ignoring its standards for hiring'; none of the alleged facts showed that there was any policy or custom which caused the incident. Thompson v. Chapel, 494 S.E.2d 216 (Ga. App. 1997).
     292:60 Village was not liable for off-duty female officer's shooting of her boyfriend after they quarreled; any negligence by village in hiring officer was not proximate cause of boyfriend's injuries Johnson v. Mers, 279 Ill App. 3d 372, 664 N.E.2d 668, 216 Ill Dec 31 (1996).
     293:74 Florida federal court declines to dismiss lawsuit against sheriff for negligent retention and supervision of deputy who allegedly threatened to take female motorist to jail unless she had sex with him, and then sexually battered her; suit claimed that deputy made similar propositions to other female motorists but that sheriff failed to investigate Battista v. Cannon, 934 F.Supp. 400 (M.D. Fla 1996).
     297:141 Deputy acted "under color of state law" when he allegedly sexually assaulted female motorist after stopping her for traffic violations; sheriff could be liable on basis of allegations of inadequate training, retention, and supervision Johnson v. Cannon, 947 F.Supp. 1567 (M.D. Fla 1996).
     298:148 Police superintendent could not be subject to supervisory liability for officer's alleged assault on bar patron; all prior complaints against officer occurred two years before superintendent even took office and the sole complaint involving violence was dismissed Munoz v. Toledo Davila, 954 F.Supp. 455 (D.Puerto Rico 1997).
     287:172 Off-duty correction officer did not act within scope of employment in shooting a man who was making noise at night in a park near his home; city not liable for officer's actions when evidence did not show inadequate screening or training of correctional officers Longin v. Kelly, 875 F.Supp. 196 (S.D.N.Y. 1995).
     Police department was not vicariously liable for officer's murder of man he robbed and battery of the man's wife; department was also not liable on the basis of alleged negligent hiring and retention of officer when it had not information at the time of hiring suggesting officer would be unfit and every incident involving officer it investigated showed no grounds for discipline or termination Bohmfalk v. City of New Orleans, 628 So.2d 1143 (La App. 1993).
     Federal government not liable for customs agents; alleged murder of courier and theft of the currency he was transporting'; agents acted outside the scope of employment in committing purported crimes and alleged negligent supervision decisions fell within discretionary function exception to the Federal Tort Claims Act Attallah v. US, 758 F.Supp. 81 (D.Puerto Rico 1991).
     City not liable on basis of negligent hiring and retaining for officer's act of trying to take his own life by swerving into path of motorists' vehicle on basis of negligent hiring and retaining Young v. City of Dimmitt, 776 S.W.2d 671 (Tex. App. 1989).
     City and city officials not liable for rape of police dispatcher by fellow officer; "gross negligence" in hiring not shown; officer liable for $4 million Wassum v. City of Bellaire, Tex, 861 F.2d 453 (5th Cir. 1988).
     City liable for a shooting by an off-duty intoxicated officer who had been disciplined for intoxication on three occasions. A jury could find that the officer's retention endangered the public. McCrink v. City of New York, 296 N.Y. 99, 71 N.E.2d 419; 1947 N.Y. Lexis 953. {N/R}