By George Gerken, Attorney
We all know the old saying about the only two sure things in life are death and taxes. Let me add one more to that list, “Lawsuits against Police Officers”. Before you finish reading this Article, somewhere in the State of Ohio, a police officer is going to do something that could get him sued. The triumvirate of “Excessive Force, Civil Rights and Failure to Protect” may soon be as familiar as “Assault, Resisting and Disorderly Conduct.” The question you need to ask yourself is, “if it happens to me, how prepared am I?”
As a real life example of just how quickly you can get in deep water, look at the 6th Circuit’s decision in Goodwin v. City of Painesville, et al. In July, 2010, Officers in the City of Painesville responded to a disturbance outside an apartment building. After advising the occupants to calm things down, the Officers left and waited outside to see what would happen. It did not quiet down. When the Officers approached again they were told by a guest leaving the apartment that the owner of the apartment was “crazy” and was going to kill everyone in the apartment. After calling for backup, the Officers were able to get the apartment occupant to answer the door and they asked him to step outside. When he refused, two officers entered, a scuffle ensued, and the occupant was “Tased” by one of the Officers. According to the Record, the Taser was discharged two times for a total of 26 seconds. Other Officers arrived while the scuffle was going on and helped handcuff the suspect. Subsequently, the arrested person had a medical seizure and is now severely disabled with lifelong injuries.
The inevitable civil suit followed, and in addition to the usual defenses, the Officers raised the defense of “Qualified immunity” which “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. There is not enough space in this article to tell you what that really means but suffice it to say, it is meant to protect you if you act reasonably in the scope of your duties as a police officer. In the Painesville case, the District Court denied a summary judgment motion to dismiss and decided there was a question of fact as to whether the “Tasing” went on too long and if the other officers had a duty to stop the “Tasing” if it did. If you want to read all the details and the Court’s thinking, “Google” the case or call the OPBA and I can send you a copy of the decision.
To put this in perspective, think about being the Officer who arrived while the scuffle and “Tasing” was happening and helped handcuff the suspect. He is facing the same civil suit for his limited participation.
Very often, Police Officers believe that the employer (City, Village, Township or County) will defend them and pay any judgment against them. There are two problems with that thinking, the first is that of your actions are “wanton or reckless” (as alleged in the Painesville case) the employer will raise the defense that you were acting outside the scope of your employment and therefore personally responsible for any judgment. The second problem I that many employers are facing uncertain financial times (see East Cleveland) and may not have the money or enough insurance to cover a sizeable judgment. You may be responsible for any deficiency between the insurance and/or employer financial contribution.
So think back to the original question posed in the beginning of this Article, are you prepared in case you lose a civil suit. The answer is that you can be better prepared than you are now. Between Insurance, Revocable Trusts, Legacy Trusts, Personal Residence Trusts, Family Partnerships and LLC’s, you can create levels of protection to help secure your families’ future. During the next year, the OPBA will sponsor some seminars on the specifics of setting up some plans on how best to provide for the family and protect your assets. If you want some immediate feedback, please call the OPBA office and they can give you my contact information.