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Police Liability and Risk Management: Torts, Civil Rights, and Employment Law PDF

345 Pages·2013·31.32 MB·English
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FORENSICS AND CRIMINAL JUSTICE Girod Police Liability Police Liability and Risk Management P o and l i Torts, Civil Rights, and Employment Law c Risk Management e L Law enforcement agencies and their employees are continually at risk for potential i a liability related to torts, civil rights violations, and employment law issues. Litigation b may involve suits by the public against officers and the administration, actions by the i Torts, Civil Rights, administration against officers, or actions by officers against the administration or l i members of the public they serve. Knowledge of these risks and understanding how they t y arise are essential to law enforcement officers, administrators, and their legal counsel. and Employment Law a Police Liability and Risk Management: Torts, Civil Rights, and Employment Law is written n d by an attorney, a 34-year law enforcement veteran who knows his way around the R streets and the courtroom. Dr. Robert J. Girod combines decades of teaching and practical experience with legal and academic education to compile this practical source of case law i s and risk management principles. The book is designed to help law enforcement professionals k reduce police liability and avoid the risk of litigation—or, in the event a lawsuit does arise—to M manage liability and defend themselves. a In our litigious society, suits involving the law enforcement community are becoming a more n common occurrence and can destroy an officer’s career or cast a pall on an entire department. a By understanding the laws governing these types of issues, law enforcement professionals are g better able to monitor the sources of liability and implement risk management strategies to e shield their policies, practices, procedures, and protocols from the danger of liability. m e n t Dr. Robert J. Girod, JD, PhD K20596 6000 Broken Sound Parkway, NW Suite 300, Boca Raton, FL 33487 711 Third Avenue New York, NY 10017 an informa business 2 Park Square, Milton Park www.crcpress.com Abingdon, Oxon OX14 4RN, UK www.crcpress.com K20596_cover.indd 1 8/14/13 9:04 AM About the pagination of this eBook Due to the unique page numbering of this book, the electronic pagination of the eBook does not match the pagination of the printed version. To navigate the text, please use the electronic Table of Contents or the Search function. Police Liability and Risk Management Torts, Civil Rights, and Employment Law Police Liability and Risk Management Torts, Civil Rights, and Employment Law Robert J. Girod, JD, PhD Boca Raton London New York CRC Press is an imprint of the Taylor & Francis Group, an informa business CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742 © 2014 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works Version Date: 20130405 International Standard Book Number-13: 978-1-4665-9313-8 (eBook - PDF) This book contains information obtained from authentic and highly regarded sources. Reasonable efforts have been made to publish reliable data and information, but the author and publisher cannot assume responsibility for the validity of all materials or the consequences of their use. The authors and publishers have attempted to trace the copyright holders of all material reproduced in this publication and apologize to copyright holders if permission to publish in this form has not been obtained. If any copyright material has not been acknowledged please write and let us know so we may rectify in any future reprint. Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmit- ted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www.copyright. com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com I want to thank and dedicate this book to my friends and family, my professors at the many institutions that I have attended, and the brothers and sisters in law enforcement with whom I have shared a career and profession, from coast to coast, for more than 33 years. I particularly want to thank Gordon Graham for igniting the concept of this book in my mind and for his decades of service to law enforcement, the legal profession, and the study of risk management in law enforcement. Graham served the California Highway Patrol as a captain and an attorney, the citizens of the State of California, and his brothers and sisters in law enforcement across our great country for a lifetime. He continues to serve them all today. Most of all, I want to thank my family for staying with me steadfastly each day of law school and each day of my law enforcement career. To my wife, Laurie, who helped take up the slack when law school took up every moment of every day. She has been an indispensable helpmate, my constant companion, and a wonderful wife. To my son, Bobby, who patiently traveled and hung around the law school for more than 4 years of his young life. He was a great help and support and will be a great member of our society in whatever course he chooses. To my son Joshua, who entered the field of safety and security at a young age and continues our family tradition of military service to our country in the U.S. Navy. And, of course, to my mother, Carolyn, because she is “mom,” and to the rest of our family. My family has been steadfast and supportive through the dangers and perils of law enforcement and the trials and tribulations of attending and teaching at many universities. “Thank you” does not seem to say enough. I love you all. The grace of our Lord Jesus Christ be with you all. Amen. Revelations 22: 21 Contents Preface xvii About the Author xxi Listing of Cases xxiii Section I RISK MANAGEMENT 1 Fundamentals of Risk Management 3 Introduction to Torts 3 Fundamentals of Risk Management 3 Procedures for Initiating a Civil Action 5 Frivolous Lawsuits 5 Types of Civil Actions 6 Classification by Nature of the Relationship Between the Parties: Tort and Contract 6 Classification by Nature of the Defendant’s Wrongdoing: Intentional Torts, Negligence, and Strict Liability 6 Classification by Type of Injury: Personal Injury, Property Damage, etc. 7 Standardization and Best Practices 7 Sample Risk Management Plan 9 Risk Management Strategy: (Minnesota Example) 10 Section II TORTS 2 Intentional Torts 19 Intentional Torts 19 Prima Facie Case 20 Act 20 Intent of Consequences 20 vii viii Contents Causation 20 Damage 21 Torts Against Persons 21 Assault 21 Battery 21 False Imprisonment (and False Arrest) 22 Intentional Infliction of Emotional Distress 25 Torts Against Property 27 Seizure of and Interference With Property 27 Trespass to Land 27 Trespass to Chattel 28 Conversion 29 Defenses and Privileges 29 Consent 29 Self-Defense 30 Defense of Others 30 Defense and Recovery of Property 30 Necessity 31 Authority of Law 31 Discipline 31 Justification 32 3 Negligence 33 Definition and Elements of Prima Facie Case of Negligence 33 Duty (Legal Duty) 34 Breach of Duty 34 Causation 35 Damage or Injury 35 Negligence Formula 35 Standard of Care 36 The Reasonable and Prudent Person 36 The Professional 37 Aggravated Negligence 38 Rules of Law 38 Violation of Statute: Applicability and Effect of Statute 38 Proof of Negligence 39 Reasonable Care, Constructive Notice, and Circumstantial Evidence 39 Res Ipsa Loquitur 40

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