The intrusive nature of the duties that criminal justice personnel perform exposes them to
higher degrees of liability than other occupations. This is not to suggest that physicians, psychologists, social workers, therapists, teachers, or administrators are unlikely to be the subject
of a civil lawsuit. It is because criminal justice practitioners restrict citizens’ and prisoners’ liberties and rights, and therefore are more likely to become involved in litigation than members
of other professions.
Among the many job functions that criminal justice personnel perform, responding appropriately to street- and institution-level situations is paramount. Criminal justice personnel
must also exercise a high degree of skill in using their authority and discretion when implementing department policy and enforcing the law. Legal actions against law enforcement
officers frequently arise out of situations in which they have restricted the rights of citizens or
prisoners. Other litigation may result from allegations of failing to perform legally assigned
duties, performing duties in a negligent manner, misusing authority, using excessive force, or
intentionally depriving a prisoner or other person of his or her constitutional rights.
Filing a civil lawsuit in the United States has become all too common since the 1970s.
American society has become highly litigious, resorting to filing civil lawsuits without hesitation. Litras and DeFrances (1999) conducted a study for the Department of Justice on the
overall trends of 500,000 tort cases filed in the United States during fiscal years 1996–1997.
Civil cases arising out of the 75 largest counties were studied. Types of claims ranged from
personal injury actions, such as airplane accidents, assaults, libel and slander, and medical
malpractice, to motor vehicle accidents and product liability. Motor vehicle accident claims
accounted for 20 percent of the cases, while product liability cases accounted for 15 percent
and medical malpractice cases accounted for eight percent. Plaintiffs won 45 percent of all
cases filed. Plaintiffs were awarded damages in 86 percent of these cases, and punitive damages in 18 percent. The median award was $141,000. In 10 percent of the cases, the plaintiff was
awarded more than $1 million, and in eight percent of the cases, awards exceeded $10 million.
Approximately $2.7 billion was awarded in combined compensatory and punitive damages.
Cohen (2005) studied the trends in punitive damage awards in civil trials in the 75 largest counties in the United States during 2001. He reported that slander (58%), intentional
tort (36%), and false arrest/imprisonment (26%) represent three of the most common categories in which punitive damages are awarded. Of the 6,504 cases studied, the plaintiff was
awarded punitive damages in six percent of the cases. This percentage has remained stable
since 1992. Juries are more likely to grant punitive damages than judges. In one-half of the verdicts, the plaintiff was awarded $50,000 or more, in 12 percent $1 million was awarded, and
in one percent, $10 million was awarded. Punitive damages exceeded compensatory damages
in 43 percent of the cases. Medium and maximum ranges of punitive damages were reported
on the three common categories: intentional torts ranged from $16,000 to $4.5 million; slander ranged from $77,000 to $700,000; and false arrest/imprisonment ranged from $8,000 to
Kyckelhahn and Cohen (2008) performed an assessment of the trends in civil litigation
in federal district courts and the outcomes of civil rights disputes from 1990 to 2006. They
reported that a significant reason for the variance of trends in civil litigation is due to the
expansion of civil rights law with the passage of the Americans with Disabilities Act of 1990
and the Civil Rights Act of 1991. The Civil Rights Act of 1991 amended several federal employment discrimination laws. The Act also provided for compensatory and punitive damages to be
awarded, and expanded the use of jury trials.
In the 17-year assessment, Kyckelhahn and Cohen reported that overall civil rights cases
filed in federal district courts more than doubled during the 1990s, then began to decline in
the early 2000s, and from 2003 to 2006, filings in federal district courts decreased by approximately 20 percent. From 1990 to 2006, the percent of civil rights claims concluded by trial
declined from eight to three percent. From 1990 to 2006, about nine out of 10 civil rights filings
involved disputes between private parties. The trend in filing private-party disputes emerged
with 16,310 cases filed in 1990, increased to a peak of 40.4 in 1997, and declined to 30.4 cases in
In 1990 jury and bench trials each accounted for 50 percent of all civil rights trials, but by
2006 jury trials accounted for 87 percent of civil rights trials held in federal district courts.
During the reporting period, employment discrimination accounted for about one-half of all
civil rights filings in federal district courts, but filings began to decline in 2004. The percentage
of plaintiffs who won at trial amounted to about 30 percent. From 2000 to 2006, the median
damage award for prevailing plaintiffs ranged from $114,000 to $154,500. The combined 2000
to 2006 median jury award was $146,125, while the median bench award was $71,500. The
period from filing a civil rights suit to resolution in federal district courts took, on average,
about 10 months.
Further, Lanton and Cohen (2008) examined the dispositions of civil bench and jury trials
in state courts in 2005. They assessed 26,950 disposed cases, which account for a small percentage of the 7.4 million civil claims filed in state courts around the country. They reported
on nine litigated categories and found that the plaintiff prevailed in 56 percent of the filings
that plaintiffs were awarded punitive damages in 5 percent, and the median damage award
amounted to $28,000.
Plaintiffs were more likely to prevail in claims involving motor vehicles, animal attacks,
and employment discrimination, and less likely to prevail in claims of false arrest/imprisonment and product liability, to mention only a few. High combined compensatory and punitive
awards of near or more than $100,000 included: premises liability, employment discrimination, medical malpractice, and asbestos. More than 60 percent of the plaintiff winners were
granted final monetary awards of $50,000 or less. A jury decided 90 percent of the personal tort
claims, while judges decided about 70 percent of business-related civil trials (contracts and
real property) in 2005.
Chapter 1 l Overview of Civil Liability 3
Moreover, Cohen and Harbacek (2011) examined punitive damage awards in state courts
during 2005. As discussed in Chapter 2, tort claims like assault and battery are litigated in state
Compensatory and punitive damages may be awarded to the prevailing plaintiff. Cohen
and Harbacek found that in 25,000 tort claims, 12 percent of the plaintiffs sought punitive
damages and they were awarded in 5 percent. Of these awards, 30 percent were awarded about
$64,000 and 13 percent were awarded punitive damages of $1 million or more. The researchers
also reported that punitive damages are more likely to be awarded in assault and battery, slander, or libel cases, which have elements of willful or intentional behavior that would support a
punitive damage request.
Criminal justice agencies and personnel are also vulnerable and easy targets for litigation.
During the 1980s and 1990s, there were unfortunately a number of high-profile civil liability
cases that brought to the forefront the problem of police and correctional officer misconduct
nationally. The City of Philadelphia, Pennsylvania, paid out approximately $3.2 million in
1996 in two separate lawsuits related to a bombing incident that occurred in 1985. Police officers dropped C-4 explosives from a helicopter on a residence in order to drive out members
of an antigovernment group. The bomb ignited and fire spread through numerous residences,
destroying 61 structures and killing 11 people.
Other incidents have created controversy about police conduct and have resulted in civil
litigation. The beating of Rodney King in 1991 led to three Los Angeles police officers being
criminally indicted, convicted, and sent to federal prison. Later, the City of Los Angeles,
California, paid out $3.8 million in a civil judgment to King. In 1993, two Detroit, Michigan,
police officers were prosecuted, convicted, and sentenced to prison for the beating death of
Malice Green. In 2000, several New York City police officers were convicted and sentenced to
prison for beating Abner Louima and forcing a toilet plunger handle into his rectum.
Moreover, there have been successful outcomes in high-profile cases alleging officer misconduct. In the spring of 2000, four New York City police officers were acquitted of criminal
charges in the shooting death of Amadou Diallo. In that case, the officers fired their weapons
41 times. Officers approached Diallo and he made a sudden reaching movement for his wallet. Because of poor lighting in the doorway of the apartment complex, visibility was poor and
officers mistakenly took his movements as threatening and the appearance of the wallet for a
In the summer of 2000, the Federal Bureau of Investigation prevailed in a civil lawsuit
brought by survivors and families of the Branch Davidian group in Waco, Texas (Garcia, 2000).
Agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) were executing a warrant for the
arrest of David Koresh for firearms violations, when they encountered lethal resistance from
him and members of his cult in February 1993. Several agents were injured and six were killed.
For more than 50 days, Koresh and his followers refused to exit their compound and submit to
arrest. The siege ended with the main housing structure being burned as FBI agents attempted
to enter the building.
Four million dollars in damages was paid out for a deadly force incident in 1995. The Ruby
Ridge standoff incident in Montana left one U.S. Marshal and the wife and two children of
Randall Weaver dead. An FBI sniper shot and killed Vicki Weaver and her infant child, and
a U.S. Marshal shot and killed the Weavers’ 14-year-old son, Samuel. Federal agents were
attempting to arrest Weaver on charges of possessing and selling illegal firearms.
While individual civil lawsuits filed against police officers have gained momentum since
the 1980s, the federal government, through the Department of Justice, has brought civil lawsuits against several police departments. These lawsuits have been brought under § 210401
of the Violent Crime Control and Law Enforcement Act of 1994 (Title 42 U.S.C. § 14141). The
Pittsburgh, Pennsylvania, and Steubenville, Ohio, police departments were the first police
agencies to complete federal oversight through a consent decree for five years through this law
(DOJ, 1997a,b; 2005). Since this law began to be used by the Department of Justice in 1997, 22
police agencies have been investigated and are in various stages of a five-year consent decree
or a Memorandum of Agreement (MOA) (DOJ, 2005).
Jails and prison systems in the United States are also subject to prisoner civil litigation and
many have sustained consent decrees. Koren (1994) reported that the number of correctional
systems under court order/consent decree increased from 11 in 1988 to 39 in 1994, largely due
to prisoner litigation. Correctional entities have also been targets of prisoner litigation. In 2000,
the Michigan Department of Corrections settled several civil lawsuits involving sexual abuse
of female prisoners by male officers. In Texas, a privately operated jail incurred litigation stemming from a shakedown in which officers were alleged to have used excessive force and physically abused prisoners, violating their constitutional rights. The actions of the “shakedown”
were videotaped and later broadcast on Dateline NBC in 1997. The videotape showed officers
and command personnel requiring prisoners to crawl across the floor nude, while officers
kicked, pepper-sprayed, and prodded them with stun guns, then used a dog to move them out
of their cells. On several occasions, the video showed the dog biting various compliant prisoners. This incident resulted in a civil litigation claim against the sheriff, the chief deputy, and
a county official in charge of the detention center’s emergency response team (Kesler v. King,
1998). The claim alleged the use of excessive force, failure to train, failure to supervise, and a
failure to screen prospective officer candidates prior to employment. The court ruled against
the county, holding that it was not objectively reasonable to use force or the canine in such a
situation, in which prisoners were compliant.
The purpose of this chapter is to examine the prevalence of civil liability in police and correctional work. Since the 1960s, citizens and prisoners in the United States have, with increasing frequency, filed civil lawsuits against police and correctional officers. Trends and the
subject matter of these lawsuits are still emerging, and accurate data that fully tracks this area
of the law is sparse. Recognizing this, emerging trends and patterns of citizen and prisoner litigation are presented.