January 16, 2013
Legal Survey Results.

If you have ever looked at my bio within my apps, you will read one of my goals in life is to one day change precedent, or at the very least attempt to, with respect to law enforcement civil liability in 42 U.S.C. § 1983 civil rights actions. As a law enforcement officer, you may be held civilly liable if you violate clearly established statutory or constitutional rights that a reasonable person would have known. A constitutional right is clearly established and known when it is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. This does not require that there be case law exactly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. Thus, if case law exists that restricts an officers conduct (e.g. search & seizure, use of force, etc.) and that officer conducts himself contrary to this established precedent, he may be civilly liable for violating an individuals civil rights.

Law enforcement officers (LEOs) are wrongfully held to this standard for two reasons:
  • LEOs are oftentimes required to make split-second decisions and do not have the time to research applicable case law. The vast majority of us are not attorneys and should not be expected to have the legal knowledge, education and background of an attorney. Even attorneys and judges cannot agree on the interpretation of case law. It takes a team of lawyers to argue a single point of law before a judge. How is it fair to expect LEOs to make such split-second judgment calls when legal professionals quarterbacking from an armchair cannot come to an agreement when analyzing the same fact-pattern?
  • LEOs are not provided with the resources to make informed legal decisions. As I just mentioned, it takes a team of lawyers to research and argue the interpretation of case law. These lawyers have subscriber access to LexisNexis, Westlaw, and likely a library of legal sources behind their armchair. They have the ability to research and dissect the hundreds, sometimes thousands, of pages of court decisions where you as an officer oftentimes are not even provided with the sentence after the word ‟Held:”. And yet, you are expected to know case law from your local appellate court, state supreme court, federal district court, federal circuit court of appeals, and U.S. Supreme Court. If you fail to have knowledge of a single case that establishes a constitutional right from any one of these courts, you may be civilly liable. Worse yet, some states have laws stating if a government official is found to have been violating an established constitutional right on two occasions, he can no longer hold public office.
It is my contention that LEOs should only be civilly liable if their actions are egregious and/or with malicious intent. In an attempt to support my theory that LEOs are not adequately provided with legal training to support them in their daily duties, I asked app users to respond to a survey asking, ‟How often does your agency formally provide you with legal training consisting of court decisions that impact your job as a LEO?” I received 1,386 responses to this single question. Not surprising, only 49% of respondents receive AT LEAST annual legal training. Congratulations to the only 1.875% that receive some form of weekly legal updates.

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