Generally, to avoid the defense of governmental immunity, a plaintiff will plead a claim of gross negligence. Michigan law under MCL § 691.1407(7)(a) defines “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” This area of law is highly specialized.
Police also have been sued in Michigan for liability under common law and statutes for the dog-bite injuries. However, Michigan Courts have ruled there is governmental immunity for police dog bites.
Officers may also be sued under Federal law, under 42 U.S.C. § 1983 for rights deprivation, a major area of liability for any police department or other public employee. Essentially, the public employee must use the power of the state, by virtue of their employment and authority, to violate someone’s rights. Police officers, of course, are usually liable for issues that arise during the arrest and detainment of the public.
Officers are also generally shielded from liability from civil claims as long as they do not violate clearly established statutory or constitutional rights which a reasonable person would have been aware of. The courts look at whether the violation of a constitutional right has occurred and the constitutional right at issue was clearly established at the time of defendant’s alleged misconduct.
This includes injuries while subduing arrestees, when the courts address whether the arresting officer’s actions were proper in attempting to subdue the arrestee, recognizing a distinction between the amount of force that is reasonable before a subject is subdued and the amount of force, if any, that is reasonable after a subject is under police control.
Further, a private person jointly engaged with state officials in a deprivation of rights action is acting under color of law for purposes of § 1983. For example, a physician who is under contract with the state to provide medical services to inmates at a state prison hospital on a part-time basis acts “under color of state law,” within the meaning of 42 U.S.C. § 1983, when he treats an inmate.
Let’s say an inmate at a state correctional facility was transferred to the state prison hospital for an orthopedic consultation. The state hospital contracted with private physicians to provide medical care at the prison’s medical facility. The defendant physician treated the inmate at the prison hospital and was paid under the state contract. The Courts explain that it is the physician’s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the state.
Contracting out prison medical care does not relieve the state of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the state’s prisoners of the means to vindicate their Eighth Amendment rights. The state bore an affirmative obligation to provide adequate medical care, and delegating that function means the contracted physician voluntarily assumes that obligation by contract.
Three key areas arise concerning common liability for police departments under federal law:
- Supervisory liability;
- Use of force issues; and
- Failure to train issues.
Supervisory liability does not exist simply by being in the position of a supervisor. The plaintiff must show that the supervising police officer encouraged the specific incident of misconduct or in some other way directly participated. Therefore, the supervisor must have actively engaged in unconstitutional behavior.
A police supervisor’s liability must lie upon more than a mere right to control employees and cannot rely on simple negligence. There must be a showing that the supervisors somehow encouraged or condoned the actions of their inferiors.
The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with hindsight. The Courts look at what is reasonable at the moment the use of force occurred. Not every push or shove — even if it may later seem unnecessary in the peace of a judge’s chambers — is found to violate the Constitution.
The inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. Only where a municipality’s failure to train its employees in a relevant respect evidences a deliberate indifference to the rights of its inhabitants can such a shortcoming be properly thought of as a city policy or custom that is actionable under § 1983.