IF YOU’RE SUED DUE TO A USE OF FORCE ON THE JOB, CONTACT LDF

GARY GOYETTE

RACHEL SIMONS
Attorneys
Goyette & Associates

Being named as an individual defendant in a civil lawsuit is probably not the first thing any officer, deputy, sergeant or lieutenant working in law enforcement thinks will ever happen to them as part of their work. Having to deal with questions from civilians, being at risk of injury (or death) while on patrol, having to use force at some point and maybe even dealing internally with misconduct or discipline issues, sure — but being sued? The reality for peace officers is that being named as a defendant in a civil lawsuit is not rare. In fact, it happens all the time. It happens nearly every time a civilian is killed or is seriously injured in association with any use of force by law enforcement employees. And with the current environment out there against law enforcement, there will likely be even more lawsuits filed against officers.

Anytime there is an incident involving the use of force by law enforcement employees, there are attorneys who immediately sign up the injured civilians, or the surviving spouses and/or children when a civilian is killed, to be plaintiffs in civil lawsuits. These attorneys file lawsuits against the public law enforcement employer and against all of the officers, deputies, sergeants and lieutenants involved in the incident. They do this for one simple reason: because the employer (the state, city, county, district, etc.) has the funds, typically through insurance, to pay out if the plaintiff prevails in the lawsuit or if the suit ends up settling. In turn, the law enforcement employees involved in any part of the use of force are also named as defendants in the lawsuit — not because the attorney for the plaintiff thinks these individuals have a lot of money that can be recovered in the litigation, but because the employer can be found liable and have to pay the damages based on the actions of the employee. The attorneys for such plaintiffs also likely figure that the employer will cover any liability found against the individual employee.

These lawsuits are typically based on the federal statutes and the associated amendments to the U.S. Constitution involving civil rights violations, but can also be based on state statutes and the California Constitution. In turn, the alleged violations are usually based on claims of alleged unreasonable search and seizure (including excessive force and/or false arrest), denial or delay of medical treatment, civil assault and/or battery, lack of due process, wrongful death, and cruel and unusual punishment.

Before you conclude, “This will never happen to me” because you will never perform sub-par or questionable law enforcement work, understand that being named as an individual defendant in these civil actions occurs all the time, even when the officers/deputies/sergeants/lieutenants are not charged criminally and are not disciplined in any manner by their employer for the use of force at issue. In other words, the attorney and the injured person (or surviving spouse/child of the deceased) do not care if the involved law enforcement employees are found by the district attorney or their own employer to have done nothing wrong; rather, if there is any chance the injury or death can lead to recovering money in litigation, the lawsuit gets filed.

“OK,” you think, “so what?” The attorney or attorneys representing your employer will always represent you as well if you are ever sued based on any use of force, right? Maybe. Maybe not. But even if you may be represented by the same attorney representing the state/city/county/district employer, that may not be good enough to make sure your rights are fully protected and to ensure your liability is minimized or eliminated. You may need protection through LDF, either with an LDF Civil Monitor or with active representation by a panel attorney. Here are the reasons why.

A Conflict May Exist Between Your Employer or One of Your Co-Workers and You

A potential conflict with your employer and its attorney — even if you are not subject to criminal charges or discipline — is entirely possible because of differing interests between your employer and you. Your own attorney has only your interests in mind, which simply isn’t possible for the attorney(s) representing your employer. Your employer and its attorney certainly may not be adverse to your interests, but the first and foremost goal of the state/city/county/local district, through its attorney, is to minimize its liability. Sometimes that can be done while fully supporting and defending your interests, but other times it can’t. Take the scenario in which the employer and its attorney must focus on aggressively defending the acts of one or more of your co-workers because those acts led directly to the civilian’s injury or death, while your acts can be left open to criticism, since proving you followed all rules, policies and provisions of law is not critical to defending the lawsuit. The result? The employer defeats the lawsuit while, as an unintended side effect, a record of you not following a particular policy or a supervisor’s directive is created.

In addition, a conflict can exist between you and one or more of your co-workers who were involved in the force incident giving rise to the lawsuit because differing amounts or types of use of force were used by you and your co-workers. Ultimately, the employer and its attorney will contend, in defense of the lawsuit, that no wrongdoing occurred — but if you fired one more shot than the next officer or applied one more baton strike than your fellow deputy, and any missteps have to be conceded, the blame may be put on you.

You Need An Attorney Who Knows and Understands the Facts Well

Because labor representatives and attorneys routinely represent law enforcement employees beginning from the initial critical incident stage, your own attorney likely already knows the key facts associated with the incident causing the injury or death at issue, even before the civil lawsuit is filed. At a minimum, each civil litigation attorney in many cases can confer face-to-face with the attorney or labor representative who dealt with the critical incident and/or the Internal Affairs process that followed. Even when the civil attorney has not been directly involved in the critical incident or IA procedure, the wealth of knowledge within the firm regarding use of force by peace officers over the last four decades or more allows the civil litigation attorneys to be well-versed in the facts, training, policies and law that apply, and in turn better protect you.

Your Own Attorney Helps Ensure That All the Aspects of the Litigation Applicable to You Are Addressed and Fully Handled

In certain cases, your own attorney may have a perspective or catch something in the litigation that the attorney representing the employer doesn’t see — even when your own attorney works cooperatively and well with the employer’s attorney. Typically, the attorneys who represent the state/cities/counties/local districts are very experienced in defending civil actions involving use of force — that is not the issue. Rather, even an experienced attorney representing the employer may not decide to take each step in the litigation that directly affects you. For example, asking a specific set of questions in written discovery, requesting certain documents or taking the deposition of every witness relevant to your use of force may not be critical in defending the employer or your co-workers, and therefore may not happen unless you have your own attorney insisting on each request or step in discovery, specific to you. This doesn’t mean the employer’s attorney doesn’t care about defending you; they just may not have the time or resources to focus on obtaining every piece of information that may apply to you, and not directly to the employer or your co-workers.

Your Own Attorney May Affect the Mindset of the Plaintiff’s Attorney to Help the Lawsuit Settle

Having your own attorney could affect the mindset of the plaintiff and their attorneys, and therefore make settlement more likely. This is because the plaintiff and their attorneys have more to deal with in the litigation. For example, your own attorney may, from the very start, insist on drafting and filing a motion to dismiss the lawsuit only against you, while the employer’s attorney makes no such motion and instead just files an answer to the lawsuit. The court then still has to hear and decide the motion to dismiss for you, while the employer and other defendants wait, and the plaintiff’s attorney has to oppose the motion your attorney made for you. The additional workload for the plaintiff’s attorney will not alone make the case go away, but it often does make the plaintiff and their attorney more open to earlier resolution of the case. And while you are not going to get constant reports from your attorney on the status of the lawsuit, the fact that it remains in litigation, sometimes for four or five years or more, is not something you want to have to deal with if you can avoid it.

While utilizing the LDF Civil Monitor is sufficient in most civil cases, wherein the Monitor will ensure no conflicts develop and your own interests are being adequately defended, at times LDF determines the need for a higher level of representation. That is where the LDF panel attorney comes in to assist. Examples of the types of cases that require referral to a panel attorney because they involve one or more of these factors include the following cases, wherein Goyette & Associates civil attorneys have effectively and aggressively defended the officer:

• A lawsuit against a municipality and several correctional deputies for the alleged adverse treatment of an inmate, which improperly included irrelevant and unrelated allegations against the individual deputy represented by G&A. The case ultimately settled.
• A lawsuit stemming from two officers conducting a vehicle stop and attempting to arrest the driver, at which point the driver tried to run over the officers, causing them to draw and discharge their service weapons. Both officers were later named, along with their employer, in a lawsuit by the driver for civil assault and battery. G&A represented the officer who fired more shots. The case was eventually dismissed before trial.
• A lawsuit based on an inmate suicide incident in a jail. The lawsuit was filed against individual correctional employees along with the employer, in which all involved pointed at each other to allege that each was responsible for the checks (deemed to be insufficient) on the inmate, which ultimately led to his death. G&A represented one of the correctional employees and the case ultimately settled.
• A lawsuit stemming from an extended highway vehicle pursuit that ended with multiple shots fired by one of two deputies when the suspect vehicle ignored commands and revved the engine with tires spinning toward the deputies. The two deputies and their employer were named in the lawsuit, which alleged unreasonable force, delay of medical treatment and false arrest. G&A represented the deputy who fired the shots, and the case ultimately settled.
• A lawsuit based on a vehicle and subsequent foot pursuit that eventually ended in the death of the suspect. The lawsuit alleged excessive force of different types (baton strikes, asphyxiation, etc.), wrongful death, failure to summon medical care, civil battery and negligence against a municipality and four individual officers and one individual corporal. G&A represented several of the individual defendants and the case ultimately settled.

Certainly you hope you will never be named in a civil lawsuit similar to any of these cases as any part of your law enforcement work. But if you are, for all the reasons just described, you may need your own LDF attorney — one who, like the Goyette & Associates attorneys, is experienced in both civil litigation and civil rights lawsuits based on police or correctional use of force.

If you have been named as a defendant in a civil lawsuit arising out of your work, you should contact the Legal Defense Fund immediately.

About the Authors
Gary Goyette is the head of the Civil Litigation Department at Goyette & Associates. He has significant experience in various forms of litigation, from defense of peace officers in civil rights cases to defense of private-sector employers to representing both small and large groups of employees, including in class actions, in lawsuits regarding their wage and employment rights.

Rachel Simons is an associate attorney at Goyette & Associates in the Civil Litigation Department. Her litigation experience includes successfully defending law enforcement employees as individual defendants subject to both federal and state claims in multiple lawsuits.