Laws &quot;insulating&quot; police from lawsuits In a news article describing a local attorney's multiple lawsuits against various officers in the police department of Salem, NH, the article said: Vogelman files the suits in federal court because he says it’s “almost impossible” to sue a police officer in state court, given statutes that insulate them from litigation. What statutes are these?
There are a few main factors that limit law enforcement liability in a civil lawsuit: 1. Governmental Immunity Statutes. Usually, a state has a governmental immunity act that bars tort liability of state or local governments and of governmental officials acting in their official capacity, except for some narrow exceptions, the most common of which are for negligence in situations that are very similar to cases in which non-governmental agencies are operating (e.g. car accidents, slip and falls at government facilities, medical malpractice by doctors at government owned hospitals, etc.). Usually there is not an exception for intentional torts by law enforcement officers acting in their official capacity. Usually, damages are limited and punitive damages are not allowed at all. In New Hampshire, this is found at Revised Statutes Annotated Chapter 507-B. See e.g. here. 2. Statutes of Limitations Usually, the kind of state law torts that could give rise to police liability have short statutes of limitations that are often further curtailed by special shorter deadlines that apply to suits against governments and government officials. New Hampshire is relatively liberal in this regard with a three year statute of limitations for most civil actions that could conceivably give rise to law enforcement action related liability. (In Colorado, in contrast, the statute of limitations to file a notice of claim against a governmental entity is six months and the statute of limitations for intentional torts in the event that a court finds that an police officer's conduct was outside the scope of his or her official duties is one year.) 3. Federal Liability Claims The main kinds of liability that the U.S. Constitution prevents state governmental liability statutes from providing immunity from are suits under 42 U.S.C. § 1983 (i.e. civil rights lawsuits), and suits arising under the due process clause of the 5th Amendment as incorporated through the 14th Amendment and under the 14th Amendment directly (i.e. inverse condemnation actions alleging a taking without due process or compensation). A. § 1983 Lawsuits There are several barriers to recovery under 42 U.S.C. § 1983 a.k.a. the Third Enforcement Act (see generally, e.g., Allison L. Patton, &quot;The endless cycle of abuse: why 42 USC 1983 is ineffective in deterring police brutality&quot; Hastings LJ (1992)). Note also that the limitations below apply primarily to retrospective suits for money damages. Not all of these limitations apply to prospective relief in the form of an injunction prohibiting certain kinds of conduct in the future. i. There is no vicarious liability. See, e.g., here. So, a government is not responsible unless it as an entity, and not just an agent or employee, has an intent to violate someone's civil rights. This factor is somewhat less important than it seems in practice, because a law enforcement officer's employer or union will usually advance the costs of defense of a civil rights action (something not normally available for intentional tort lawsuits in the private sector) and will often agree to indemnify a law enforcement officer defendant in a settlement or after an award against a law enforcement officer defendant. The absence of vicarious liability also means that you can only prevail if you can determine that a particular named individual violated your rights. It is not sufficient to know, for example, that some unnamed police officer in a particular city's police department violated your rights. In contrast, if you are harmed by an unnamed employee or agent of a private business corporation, because of the much maligned doctrine of corporate personhood, the corporation can be held liable for that unnamed employee's acts anyway, which is usually better than proving liability on the part of the employee because usually the employer has a greater ability to pay a judgment than an employee. ii. There is only liability for intentional violations of civil rights. If mere negligence, § 1983 does not provide a remedy. Daniels v. Williams, 474 U.S. 327 (1986). If poorly designed systems cause someone's civil rights to be violated, it is usually impossible to identify someone whose more culpable than negligent conflict is responsible for this violation. iii. Police officers have qualified immunity from liability under § 1983 (a doctrine created surprisingly recently). This means that the police officer must have allegedly intentionally violated a well established right, which basically means that there must be controlling case law governing the fact pattern in question. If there is no prior controlling case law, the police officer does not have liability even if the court finds on the merits that the victim's civil rights were indeed violated. It is basically a &quot;one free bite&quot; rule. iv. Unlike most other legal issues in civil lawsuits (the main other issue treated similarly is jurisdiction), issues of qualified immunity can be raised at the motion to dismiss stage, before any other response to the lawsuit is required, even if it requires a judge to consider disputed evidence to resolve it, and if the judge rules against the police on the issue of qualified immunity, they can immediately appeal the ruling, rather than waiting until the case is resolved on the merits at the end of the case. Appellate case law on qualified immunity frequently analyzes facts in an unreasonable manner that a jury could disagree with, even though it is not suppose to do that. v. While local governments and state and local government officials can be sued in federal court pursuant to § 1983, the 11th Amendment to the United States Constitution bars lawsuits against state governments in the federal courts in most circumstances, unless the state governments have expressly waived their immunity from suit. (N.B. I have linked to Wikipedia rather than just the text of the Amendment because the Courts, shortly after it was adopted and forever after that time, have interpreted the 11th Amendment to have a meaning contrary to its plain language and impossible to infer from its text alone.) For reasons that are doctrinally complex and obscure, the 11th Amendment generally bars § 1983 actions entirely against state governments although not against state government officials (in what is called a Bivens action), and not suits against local governments. B. Inverse Condemnation Actions There are barriers to inverse condemnation actions as well: i. Inverse condemnation actions can be asserted against entities (which have vicarious liability for acts of their agents) but not against officers of government agencies. Usually, holding an entity strictly liable for actions of the entity's subordinates is a good thing for a plaintiff harmed by the government, but this doesn't provide a civil lawsuit mechanism for holding particular bad actors responsible for their conduct so it can be a poor incentive for individual governmental employees to act properly. ii. Inverse condemnation actions apply only to property interests, not harms in the nature of lost of life, harm in the form of personal injuries, lost services or time, pain and suffering, emotional distress, or loss of dignity or other legally recognized rights. Punitive damages are also not generally available in an inverse condemnation action. See, e.g., here (&quot;It is important to note at the outset that, under inverse condemnation, only damages to real and personal property are recoverable. The claim does not allow recovery of other damages.&quot;) (arguably intellectual or intangible property that is totally taken may also give rise to an inverse condemnation claim). iii. Inverse condemnation actions are available only in the event of a &quot;total taking&quot;. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Government action that reduces the value of property is not enough. For government action to be a &quot;total taking&quot; it must destroy all more than nominal economic value of the property in question. 4. Why Does A Federal v. State Forum Actually Matter? Vogelman files the suits in federal court because he says it’s “almost impossible” to sue a police officer in state court, given statutes that insulate them from litigation. This is either a misquotation or an erroneous statement. It is &quot;almost impossible&quot; to sue a police officer under state law, given the statutes that limit them from litigation such as RSA Chapter 507-B. But, it is not materially more difficult to bring an action under 42 U.S.C. § 1983 in state court than it is in federal court from the perspective of statutory law or civil procedure rules, since state and federal courts have concurrent jurisdiction over such actions. There are still good reasons to bring suit in federal court rather than state court under § 1983, and for these reasons this is how it is usually done. But, the reasons aren't statutory. Instead, they mostly pertain to the personnel involved. A. Jury Shopping Jury pool differences between state courts and federal courts are important. But, this factor varies from case to case and doesn't fully explain the strong pro-federal court choice of forum decisions made by Plaintiffs that we observe. i. Federal court provides a larger jury pool, which is desirable when the violation of rights takes place in a jurisdiction less favorable to civil rights plaintiffs vis-a-vis law enforcement defendants. ii. Further, the federal jury pool will typically include many jurors from outside the jurisdiction in which the law enforcement defendant are employed, while state courts will typically have jury pools that are drawn from the jurisdiction that employs the law enforcement defendants who will be among the people who may face increased tax liability for damages awarded for law enforcement misconduct. Like Congressmen, even if people are not favorably inclined towards law enforcement, in general, they are often more favorably inclined towards the law enforcement officials in their own jurisdiction who are protecting them (in theory) from crime. B. Implicit Judicial Bias. More importantly, in practice, state court judges presiding over § 1983 cases are usually more favorably inclined towards law enforcement defendants than federal court judges, and judges are unusually powerful in these kinds of cases. This, in turn, is a product of four main factors: i. Regulatory capture (state court judges have had law enforcement defendants testify before them in criminal cases on a routine basis and found them to be credible again and again, while routinely finding that criminal defendants, who are often demographically similar to or overlap with criminal defendants, to be not credible). ii. Most state court judges are biased in favor of law enforcement, in part, because a large share of them are state and local government criminal prosecutors. This is also true of federal court judges (about 40% were prosecutors before becoming judges) but to a lesser extent. Evidence of this bias at the appellate court level can be found here. See also here and here. iii. State court judges are part of a network of state and local government officials and politicians to whom they are favorably inclined who tend to strongly back the law enforcement officials who are also part of that network, while federal court judges, while still politically connected and not necessarily positively inclined towards civil rights defendants, have a much more attenuated connection to those networks of state and local government officials and politicians. iv. State court trial judges are typically more responsive to public opinion and civil rights plaintiffs are often unpopular individuals. Footnote Re Sources In addition to the sources linked, my first &quot;real job&quot; out of law school including defending county governments and county officials from government liability claims. The matters for which there are no links to sources largely reflect the conventional wisdom of myself and my colleagues in that context.
You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right.
Is there a cause of action for &quot;Outrageous conduct&quot; that does not depend on the vulnerability to the emotional distress of an individual but might be properly applied to a public official (acting in official capacity) due to the effects on society as a whole? No. There is no such cause of action. A public official acting in the official's official capacity is immune from civil liability in tort for intentional acts that do not violate a clearly established constitutional right. There are some narrow exceptions to this general rule. For example, certain employment discrimination lawsuits are allowed. Similarly, for example, embezzlement of private funds held in a fiduciary capacity by a public official in charge of conducting foreclosures would be actionable in many states. But there are no exceptions that are in any way a fit to the fact pattern described. Furthermore, at least in federal courts, there can't be such a cause of action. An action that has an effect on society as a whole is, by definition, an act which no one has standing to sue regarding. Standing to sue, which is a subject matter jurisdictional requirement in federal court, requires a particularized injury to a legally protected interest of an individual that is distinct from the injury caused to the general public, or taxpayers generally, or citizens generally. State law, in principle, can give standing to someone who does not have standing under this federal constitutional law standard in state court, but most states make only the most narrow exceptions to the principle. For example, some states give someone standing to sue for violation of state constitutional budget and tax rules that apply to legislation generally. Often standing exceptions and exceptions from the federal court case and controversy requirement (which is also a matter of subject matter jurisdiction in federal court) are waived at the same time.
So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not. Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true. In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor. Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene. Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide. Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun. Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder. As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us." Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case. In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case. Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense.
It depends. The police and only the police decide what are and are not police matters. However, although it might not be a police matter, you still have lots of options at your disposal. For example, does your jurisdiction (city, town, municipality, etc.) have an animal control division? i.e., City dog catcher. Most do. If so, I would call the animal control division and file a report. They might possibly do a field visit and take the animal into custody if the animal is still roaming loose. If you sustained bodily injuries, you should get checked by a doctor and have those injuries documented in a medical report. If possible, you could drive by the property and take photos of the unchained dog roaming loose. Then, armed with your evidence consisting of: police report medical injury report animal control report and photographs of the scene You could (with the help of a licensed attorney) file a civil suit against the pet owner. You might be able to win an award for damages, pain and suffering and possibly punitive damages as well (check with your attorney). Also, your attorney could advise you if you might have a cause to move for an enforcement action against the dog and/or its owners that might or might not include having the animal removed from the owners custody or in extreme cases of negligence and bad behavior possibly "put to sleep." Your suit might focus on collecting from the homeowner's insurance policy of the pet owner and you could potentially collect a lot of money with the right set of facts and evidence on your side. You might want to look for an attorney who specializes in personal injury. Most PI attorneys work on a contingency. Meaning they don't charge an up front fee and will only get paid if you win your case or settle. In which case their fee is typically about 1/3 of what you get awarded in settlement or judgment.
Revised for clarity in light of comments State and local police can arrest anyone who they have probable cause to believe is breaking state or local law. Like all LEOs, Federal LEOs can break some state and local laws while enforcing Federal law. When they grab someone off the street and hold them in a cell, they are detaining them, not kidnapping them, and so on. However, to avoid arrest, the Feds have to identify themselves. That's because state and local LEO who know they are dealing with Feds on federal business no longer have probable cause to believe a crime is being committed. State and local police can arrest Federal LEOs who they: a) have probable cause to believe are breaking state or local; and, b) have no reason to believe are Feds enforcing Federal law. In other words: Any Fed who refuses to identify herself to a local LEO can be arrested if there is probable cause. State and local police cannot, however, arrest Federal LEOs just because they are not wearing insignias. That is because: a) there are no federal statutes requiring federal LEOs to identify themselves; b) the Supremacy Clause says federal law takes precedence over state and local law that conflict with it; c) at least in Portland, the feds were not operating under any sort of formal agreement with Portland or Oregon officials that required them to have identification. While it is hard to prove a negative, the question of whether Federal LEOs are required to identify themselves has been looked at recently by reputable sources. They all agree there is no such law. For example, the answer from Lawfare: Broadly speaking, law enforcement officers do not have a legal duty to disclose either their identities or their agencies of affiliation, even if asked directly. Certain municipalities require police officers to identify themselves if asked, but there is currently no federal statute requiring officer disclosure of such information. The article points out that the two main types of cases involving police identifying themselves really don't apply: police who are working undercover, notably in sting operations, and police searching and seizing property. They go on to point out: Separate from the question of federal law, several states have adopted laws and regulations requiring law enforcement to identify themselves. For example, under New York City’s Right to Know Act, a broad set of police reforms that went into effect in October 2018, officers must tell civilians at the start of some interactions “their name, rank, command, and shield number.” (Also, many departments have policies that generally require officers to identify themselves, although with exceptions. You can see examples of the policies here.) Again, these local laws do not apply to Feds because of the Supremacy Clause. NOTE: As several of the news stories note, the lack of identification will make it very hard to hold Federal LEOs accountable for their actions. Accountability requires identity.
I know one can "make a complaint" but I'm wondering if there's generally any legal obligation for these complaints to be taken seriously, and if there's any feasible way a driver could validate the encounter. . . . Furthermore, even with evidence, is there any way a citizen could ensure that legal action be taken against the officer for a proven traffic violation? Beyond reporting it to the department and hoping for the best? A prosecutor is under no legal obligation to press charges (and police have no affirmative duty to enforce the laws on the books) ever, even if there is blatant and clear evidence of murder, let alone a traffic violation. Usually, there is absolutely no way to compel charges to be brought against the offender (with a handful of states providing an exception where one can seek the appointment of a special prosecutor to investigate and prosecute if the circumstances warrant that would never be invoked for a mere traffic offense). Very few states allow anyone other than a prosecutor (or sometimes in minor cases, a law enforcement officer) to bring criminal or quasi-criminal charges. Of course, if compelling evidence of a violation is found and shared with the media, there may be powerful political pressure to bring a prosecution, but how that is developed would entirely depend upon the circumstances. Still, the relationship between prosecutors and law enforcement is so symbiotic, that prosecutors are loathe to press charges against law enforcement officers in all but the clearest of cases, especially for offenses occuring while a law enforcement officer is on duty in his home jurisdiction. Legally speaking, do civilians have any right to apprehend an officer for a traffic violation? While this would depend upon state law, most states treat traffic violations as a class of offense different from other misdemeanors and infractions and never authorize a citizens arrest for a traffic violation. Normally, only law enforcement officers can stop and cite people for traffic violations that aren't actually misdemeanor crimes. For example, in Colorado, true traffic infractions are defined as civil matters for which someone may be stopped and subjected to a citation but not arrested (even by a law enforcement officer). See Colorado Revised Statutes § 42-4-1701(1). In Colorado, only more serious traffic offenses (e.g. hit and run) are crimes subject to arrest. In the case of a traffic offense which is a crime (probably not speeding), the general rules applicable to citizens arrests would usually apply.
Police have discretion in the enforcement of the law Which is to say, police get to decide which crimes they make arrests for, which they handle with warnings, which they report and which they ignore. This applies whether they are in uniform, undercover or off-duty. If they abuse this discretion then they are liable to disciplinary action. If they apply it corruptly or otherwise illegally then they are liable to criminal sanction.