Ohio Patrolmen's Benevolent Association
I Don't Want to Lose My House
Print Icon Mar 11, 2019

I DON’T WANT TO LOSE MY HOUSE

BY:  GEORGE GERKEN

Unfortunately for the law enforcement community, your chance of being sued civilly for a work-related act is considerably higher than most other occupations. Often, when I sit down with my police or corrections officer clients to talk about asset protection and Trusts, the first thing they say is “I just don’t want to lose my house if I am sued.” Like everything else in the law, there is no simple answer to the question about protecting your assets. There are numerous actions that an officer can take to protect his/her assets which include the establishment of an irrevocable Trust, an asset protection Trust, a qualified personal residence Trust, having adequate home owners insurance (i.e. an umbrella policy), having adequate automobile insurance (not 100/250) and establishing a Limited Liability Company.

However, it is important to realize there are two very powerful statutory protections which are your first line of defense against a civil suit for acts arising from your occupation. The first is the legal doctrine of “Qualified Immunity” and the second is the doctrine of “Indemnification.” The rest of this article will address the issue of Qualified Immunity because it is the threshold decision the Court must make. There are different standards and definitions for “Qualified Immunity” depending on where the civil suit originates.

If you are in Federal Court, Qualified Immunity is "an entitlement not to stand trial or face the other burdens of litigation.”  The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."

The "initial inquiry" in matters of Qualified Immunity in Federal Court is this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right.  If a violation of a constitutional right could be established, then the next step is to ask whether the right was clearly established. The Supreme Court has said for purposes of Qualified Immunity, "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on Qualified Immunity is appropriate." Qualified Immunity protects "all but the plainly incompetent or those who knowingly violate the law". (Citations omitted.)

Almost exclusively, the constitutional right alleged in a 42 U.S.C. §1983 case (violation of a constitutional right) is the 4th Amendment right to be free from unlawful seizure. A good example of the application of this law in the Federal Court is the case of Brosseau v. Haugen. A Puyallup, Washington police officer attempted to arrest Haugen for felony drug violations. Haugen entered a Jeep parked in the driveway of his mother’s home and locked its doors. Officer Brosseau pointed her firearm at Haugen and ordered him out of the Jeep, but he ignored her. She hit the driver’s side window several times with her pistol. The window shattered, and she hit Haugen in the head with the butt of her sidearm. Undeterred, Haugen started the Jeep and began to move forward. Brosseau jumped back and as the vehicle continued to move forward, she fired one shot through the rear driver’s side window. This shot hit Haugen in the back.

Haugen sued Brosseau in federal Court pursuant to 42 U.S.C. §1983 and alleged that she used excessive force. Brosseau asserted the Qualified Immunity defense. The trial Court judge ruled in her favor and dismissed the suit. The Ninth Circuit Court of Appeals reversed and remanded the case for trial.

The Ninth Circuit ruled that the shooting was excessive and violated the Fourth Amendment because Haugen did not represent a threat of serious bodily harm to Brosseau or others when he was shot. The Circuit Court also ruled that the state of the law was clearly established at the time and that no reasonable officer could believe that the shooting was lawful.

The Supreme Court reversed. In its analysis, the Court jumped immediately to the second prong of the Qualified Immunity test, which asks the question, was the constitutional right alleged to be violated “clearly established?” The Court framed the particular issue in this case by asking, “whether [it is permissible] to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”[12] The Supreme Court concluded that the law was “by no means clearly establish[ed]” [13]that Brosseau’s conduct in this case was unconstitutional. The case was dismissed on Qualified Immunity grounds.

Under State law in Ohio, Public officials, including police officers, are immune from civil liability unless their actions, or failure to act, in the capacity of their employment, were with a “malicious purpose, in bad faith, or in a wanton or reckless manner.” Recklessness is legally defined as a conscious disregard of a known risk.

A good explanation of this standard is the following case.  After committing a robbery, Andrew Barnhart was involved in a high-speed chase with five officers from the Miami Township Police Department and the Montgomery County Sheriff’s Department. During the chase, Mr. Barnhart’s vehicle collided head-on with Pamela Argabrite. The accident killed Mr. Barnhart but caused serious injury to Ms. Argabrite. Following the accident, Ms. Argabrite brought suit against the five officers claiming their negligence in the chase led to the head-on collision and her injuries.

The case proceeded through the lower Courts and made it to the Ohio Supreme Court. In reviewing the facts, the Ohio Supreme Court found the police officers had broken protocol and procedure in pursuing the high-speed chase. However, breeching departmental procedures were not conclusive evidence to establish the officers acted in a wanton or reckless manner. Instead, it was necessary to demonstrate the officers had acted with a “malicious purpose, in bad faith, or in a wanton or reckless manner” during the high-speed chase. Every officer was found to have behaved reasonably in performing his or her duties during the high-speed chase. The case was dismissed on the Qualified Immunity doctrine.

However, there is a very troubling decision from the Eighth District Court in Cleveland which may make you want to explore my suggestions in the beginning of this article. The Court held that a police officer can be civilly liable under state law for the subsequent criminal actions of a suspect that they failed to properly investigate.  All the defendants in this case were dismissed with the exception of the investigating detective. In this case, an officer was approached by a woman who claimed a man had attempted to rape and kill her.  The police subsequently arrested the suspect and a detective investigated the woman’s claims but released him when it was determined by the prosecutor, upon consultation with the police detective, that there was not enough evidence to charge the suspect with the attempted rape. The evidence presented by the detective to the prosecutor allegedly did not include several pieces of evidence and the detective allegedly did not interview some potential witnesses.

 Later, when a woman fell out of the suspect’s house naked and claiming of being raped and held captive, it was discovered that the suspect was in fact a serial rapist and murderer who had killed and raped at least eleven women.  Nine of the victims were killed following the suspect’s release from jail, and the estates for the subsequently killed women brought claims against the investigating officers. 

The Eighth District held that investigating officers can potentially be held liable for the subsequent criminal actions of the released suspect if the evidence showed that the investigation had been recklessly deficient.  In reaching this decision, the Eighth District rejected the officers’ claims that they were protected by common law concepts of duty pursuant to which a person is not held liable for the criminal acts of other individuals.  The Eighth District’s decision can be found at Moore v. City of Cleveland, 2017-Ohio-1156.

The bottom line is that “Qualified Immunity” should protect you from being sued civilly but as the saying goes, “nothing is guaranteed”.  If you have any questions about this topic, or asset protection in general, please call the OPBA office and they will give you my contact information


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