Presented to the Topeka Police Department
March 3, 1998
John J. Knoll
Assistant City Attorney
City of Topeka, Kansas

© 1997, 1998 - City of Topeka All Rights Reserved. Unauthorized duplication or copying is prohibited.

Civil and Criminal Liability
Of Law Enforcement Officers

1.1 The five highest risk activities for LEO's
1.2 What to do when you get sued
2.1 Torts - what are they?
2.2 Negligent Torts
2.3 Intentional Torts
3.1 42 U.S.C. § 1983
3.2 Civil Rights Litigation
4. KANSAS TORT CLAIMS ACT (KTCA), K.S.A. 75-6101, et seq.
4.1 Coverage and Effect of KTCA
5.1 General Principles
5.2 Federal Criminal Liability
5.3 State Criminal Liability


    As a Law Enforcement Officer (LEO), you will be involved in numerous situations where the decision you make may expose you to civil or criminal liability. The risk of a civil suit against you is higher than most other professions (except a corrections officer), but this risk should not deter you from doing your job. Many civil actions are frivolous, and a good number of them are dismissed without a the need for a trial. However, LEOs need to be aware of the risks.

    Many of those who allege a LEO has wronged them pursue civil rather than criminal remedies for obvious reasons. The person filing a civil action (a plaintiff), can recover monetary damages, but the person making a criminal complaint (the complainant) generally cannot. Therefore, LEO's usually face civil suits rather than criminal complaints.

    Plaintiffs in civil suits usually rely on one or more of the following theories of recovery: (a) a civil rights violation; (b) a negligent tort; or (c) an intentional tort. Intentional torts are less common than the other two causes of action because intentional acts usually are not covered by any available insurance and are usually not subject to reimbursement under a State Tort Claims act.

1.1 The five highest risk activities for LEO's

(a) Use of force
(b) Arrest and Investigative Detentions
(c) Domestic Incident Interventions
(d) Emergency Vehicle Operation, and
(e) Forcible (Non-Consensual) Entry into Private Premises.

1.2 What to Do when you get sued

(a)    Request representation IN WRITING within 15 days of service of process. K.S.A. 75-6108(e).

(b) Cooperate in good faith in defense of the claim (e.g., .: return attorney phone calls, make yourself available for interviews, depositions, etc.)

(1) This is a duty whether or not you are sued.
(2)  If you receive any legal papers whatsoever that have anything to with your job as a police officer, contact the City Attorney's office at once.
(3) Failure to comply with subsection 1.2(b)(1) or (b)(2) will result in no defense and no reimbursement. K.S.A. 75-6108(c); K.S.A. 75-6109.
(c) City not required to defend if:
(1) Act or omission not within scope of employment
(A) Scope of Employment depends on facts and circumstances of each case.
(B) Employment status of deputy sheriff who shot prisoners questionable; summary judgment against prisoners denied. Lee v. Wyandotte County, Kan., 586 F.Supp. 236, 239 (1984).
(C) Accepting a bribe is not within the scope of employment. Commerce Bank v St. Joseph, N.A. v. State, 251 Kan. 207, 214, 833 P.2d 996 (1992). Lindenman v. Umscheid, 255 Kan. 610, 635, 875 P.2d 964 (1994).
(2) You acted or failed to act because of actual fraud or malice
(A) If city fails to defend and jury finds you did not act because of actual fraud or actual malice, the City shall reimburse you for attorney fees, costs and expenses. K.S.A. 75-6108(d).
(3) Defense by the City will create a conflict of interest.
(A) City and employee have different interests. Jackson v. City of Kansas City, 235 Kan. 278, 292, 680 P.2d 9877 (1984)(two fire trucks ran into each other).
(4) You fail to request representation in writing within 15 days. K.S.A. 75-6108(c).

2.1 Torts - what are they?

    A tort by definition is a private or civil wrong or injury other than a breach of contract for which the court will provide a remedy in the form of an action for damages. The objective of this area of the law is usually to provide compensation for damages, not punishment. It is important to remember that a tort provides for a civil remedy, not a criminal remedy.

    Tort law finds its roots in common law. Most tort law is "judge made" law based on judicial opinions as opposed to a statute or ordinance. Tort actions are filed in state district Court, and state law governs disposition of the claims. Tort claims are governed by the Code of Civil Procedure, K.S.A. 60-101, et seq. Tort claims cannot be filed as limited actions. K.S.A. 61-1603(b)(1).

(a) Negligent

    There are two basic categories of torts: negligent and intentional. Negligence involves breach of a duty of care owed to another, and arises from conduct a reasonably prudent person would or would not have engaged in, and which creates and unreasonable risk of harm to a person or persons. Negligence, by definition, is unintentional conduct.

(b) Intentional

    Intentional torts are those wrongs committed deliberately and intentionally. In many instances, the commission of an intentional tort can subject a LEO to punitive damages designed to punish the LEO and may create criminal liability as well.

2.2 Negligent Torts

(a) Elements: Duty, Breach of Duty, Causation, and Damages
(1) Common Causes of Action
(A) Wrongful death (K.S.A. 60-1901)
(B) Negligent Infliction of emotional distress
(C) Failure to Train/Negligent Retention
(D) Failure to Prevent Civil Rights Violation
(b) Plaintiff's burden to prove each element

(c) What is a duty and how does it arise?

(1) LEOs "owe duty to the public at large to use reasonable and ordinary care and diligence in exercising their duties." [Citations omitted]. Absent some specific duty owed to an individual or special relationship with that individual, liability will not lie for damages. Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982)(LEOs not liable for house burned downed by intoxicated trespasser whom they refused to remove from property).

(2) Gragg v. Wichita State University, 261 Kan. 1037, 934 P.2d 121 (1997). WSU police owed no specific duty to victim shot by gang member at a fireworks display. Duty owed to public at large, not any specific individual in the absence of special duty. Court focuses on lack of prior knowledge by law enforcement personnel of gang member's intent to shoot anyone. Attack on victim was not foreseeable under the totality of the circumstances.

(d) Special Duty
(1) Special duty arises where: (1) there is a custodial setting in which the state has limited the individual's ability to care for himself; and (2) when the state affirmatively places the individual in a position of danger the individual would not have otherwise faced. Deshaney v. Winnebago Cty. Dep't. of Social Services, 489 U.S 189, 103 L.Ed.2d 249, 109 S.Ct. 998 (1989).

(2) Kansas Case. A Special duty arises where there is

(A) an affirmative act by a LEO causing injury and
(B) a promise or representation is made under circumstances creating justifiable reliance. Hendrix v. City of Topeka, 231 Kan. 113, 120, 643 P.2d 129 (1982).
    In Hendrix, the court held there was no special duty to a mental patient denied admission to Topeka State Hospital who was later found frozen to death in Gage park. The Court noted the case would have turned out differently if LEO's had transported the patient to a remote are and left him helpless. Hendrix, 231 Kan. At 122.
(3) Guidelines or Workplace Policies

A mandatory guideline or work policy used to be enough to establish a special duty. For example, in Fudge v. City of Kansas City, 239 Kan. 369, 371, 820 P.2d 1093, 1098 (1986), a police department policy stating a person incapacitated by drugs or alcohol will be taken into protective custody if likely to injure himself or others, subjected the officers and city to liability when they failed to follow the policy and the drunk caused a car accident, killing someone. In contrast, in Mills v. City of Overland Park, 251 Kan. 434, 448, 837 P.2d 370, 377-80 (1992), the court held there was no special duty to intoxicated bar patron who LEOs permitted to leave and who was later found frozen to death. The court reasoned that the policy said such persons may, not must be taken into custody. Another example is Jackson v. City of Kansas City, 235 Kan. 278, 283, 289-90, 680 P.2d 9877 (1984), where the court held a city liable for damages resulting from firefighter driving a fire truck in excess of 35 miles per hour in violation of department policy, even though the truck was operated in compliance with K.S.A. 8-1506.

However, 1987 amendment to the Kansas Tort Claims Act (KTCA), changed the law. Government entities are now immune from damages resulting from adoption or enforcement of, or failure to adopt or enforce, any written personnel policy unless a duty of care, independent of that policy, is owed to the plaintiff. K.S.A. 75-6104(d).

(e) Breach of Duty. Deviation from the standard of care of an ordinary, reasonable police officer in same or similar circumstances.

(f) Causation

(1) Proximate cause is "that cause, which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act." Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278, 280 (1987).
(2) Example. A driver's voluntary high-speed flight from LEO and crashing into tree is proximate cause of his own death, not LEO's violation of pursuit policy. Carl v. City of Overland Park, 65 F.3d 866 (10th Cir. 1995).
(g) Damages
2.3 Intentional Torts
(a) Elements: Wrongful Act, Intent to cause injury, and "Substantial certainty" act will cause injury.
(1) Common Causes of action
(A) Assault
(B) Battery
(C) Intentional Infliction of Emotional Distress
(D) Deliberate Indifference
(E) False Arrest
(F) False imprisonment
    Shopkeepers (and store security officers) have a limited right to detain a person they reasonably suspect of shoplifting. Detention is limited to the premises or immediate vicinity and to the time it takes to conduct a reasonable investigation of the facts. Investigation must occur in a reasonable manner Alvarado v. City of Dodge City, 238 Kan. 48, 62, 708 P.2d 174 (1985).
(G) Outrage
    Lindemuth v. Goodyear Tire and Rubber Co., 19 Kan.App.2d 95, 864 P.2d 744 (1993) "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. [Citations omitted.] Proof of four elements is required to establish the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant's conduct and plaintiff's mental distress; and (4) plaintiff's mental distress must be extreme and severe. Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981).
(H) Trespass
(b) Plaintiff's burden to prove each element

(c) Possible civil and criminal liability


3.1 42 U.S.C. § 1983

    "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

    These actions are "constitutional torts" and are usually filed in federal court, although they can be brought in state district court. The original purpose of the statute was to provide state citizens a federal forum for protection of constitutional rights when the state was unwilling to enforce them (e.g., southern states that refused to protect the civil rights of black citizens.) The statute provides only a procedural mechanism for enforcing a right arising under the constitution or some other federal law, not a violation of state law. As a LEO, virtually all your official actions are carried out "under color of statute."

    These actions are becoming more common, especially after Congress amended the civil rights act in 1990 to allow successful parties to recover attorney fees pursuant to 42 U.S.C. § 1988.

(a) Constitutional or Federal Rights

Claimed violation must violate plaintiff's rights granted under United States Constitution or Federal Statute, not state law or regulation.

"The Supreme Court has given clear recognition to the proposition that the rights under this statute and the rights arising under the state common law, although similar, are nonetheless distinct remedies. The same set of facts may give rise to violations of both the federal statute and the state common law, but the rights are not necessarily coterminous and the essential criteria are not necessarily the same."  Martin v. Duffie, 463 F.2d 464, 467 (10th Cir. 1972)

(b) Under Color of Law

    In order to be held liable under 42 U.S.C. § 1983, you must be acting pursuant to state law. By virtue of your status as LEO's, you are almost always acting under color of state law regarding normal duty functions. See Alvarado v. City of Dodge City, 238 Kan. 48, 53, 708 P.2d 174 (1985)(off-duty police officer working as private security guard acted under color of state law when detained shoplifter, showed his badge, and filed arrest report).

(c) Municipal Liability

(1) You may be individually liable and the city not liable. In order for a municipality to be liable pursuant to 42 U.S.C. § 1983, you must be acting pursuant to a city policy or custom, and your actions must violate a federal law. Monell v. New York City Dep't. Of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

(2) Municipal policy may include "not only policy statements, ordinances and regulations, but the individual decisions of city officials who have 'final policymaking authority.'" David v. City and County of Denver, 101 F.3d 1344, 1357 (10th Cir. 1996)(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986)).

(3) Random acts do not subject city to liability. See Alvarado v. City of Dodge City, 238 Kan. at 55.

(d) Defenses
(1) Immunity
(A) Qualified immunity protects public officials performing discretionary functions unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993).

(B) What constitutes probable cause for an arrest is clearly established law. Therefore, police officers should know what it is and if they arrest without it, they will be held liable. Alvarado v. City of Dodge City, 10 Kan.App.2d 363, 370, 702 P.2d 935, reversed on other ground 238 Kan. 48, 708 P.2d 174 (1985).

(2) Justification or Reasonableness

(3) No Personal Participation

"To prevail on a claim for damages for a constitutional violation pursuant to 42 U.S.C. § 1983, a plaintiff must establish the defendant acted under color of state law and caused or contributed to the alleged violation." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). A Plaintiff's failure to name specific officers who violated her clearly established rights is sufficient basis for granting summary judgment.
3.2 Civil Rights Litigation
(a) Agency Responsibilities
(1) Provide defense
(A) Similar to any other civil action K.S.A. 75-6101, et seq.
(2) Reimburse costs

(3) Pay the Judgment

(b) Your Responsibilities
(1) Provide prompt notice to the City Attorney's Office

(2) Request representation IN WRITING within fifteen days of receiving notice of the lawsuit

(3) Do not sign anything unless directed to do so by City Attorney's Office.

(4) Cooperate in defense of the claims.

4. KANSAS TORT CLAIMS ACT (KTCA), K.S.A. 75-6101, et seq.

4.1 Coverage and Effect of KTCA

(a) Covers noncriminal civil rights violation. K.S.A. 75-6116(a).

(b) If acting within the scope of your employment, the City provides a defense K.S.A. 75-6103(a); K.S.A. 75-6108(a).

(c) If acting within the scope of your employment, the City reimburses for damages awarded, but not punitive damages. K.S.A. 75-6108(f); K.S.A. 75-6105(c).

(d) Judgment against the city bars an action against you individually, and judgment against you individually bars action against the city. K.S.A. 75-6107.

(e) Coverage limited to $500,000 for any number of claims arising out of single occurrence or accident. K.S.A. 75-6105(a).

(f) General Rule.

Government Entities are liable for negligent or wrongful act, if a private citizen would be liable. This is the exact opposite of the common law rule that the "king can do no wrong." K.S.A. 75-6103(a).
(g). Exceptions to liability
1. Enforcement/Failure to enforce laws. K.S.A. 1997 Supp. 75-6104(c).
(A) City not liable to third party injured by fleeing driver being chased by LEO operating emergency vehicle in excess of speed limit but in compliance with K.S.A. 8-1506. Thornton v. Shore, 233 Kan. 737, 753, 666 P.2d 655 (1983).

(B) Warrantless arrest based on probable cause which results in false arrest is protected. Mendoza v. Reno County, 235 Kan. 692, 694, 681 P.2d 676 (1984).

2. Discretionary functions (policy decisions). K.S.A. 1997 Supp. 75-6104(e)
(A) Because police departments cannot anticipate every conceivable situation where guidelines are needed, officers "should vested with the necessary discretionary authority to act in a manner which they deem appropriate without the threat of potentially large tort judgments against the city." Robertson, 231 Kan. At 358 (failure to remove trespasser from plaintiff's property when there were no published guidelines requiring the same results in no liability).

(B) Additional torts amounting to negligence (failure to warn of prison escape) will subject city to liability. Cansler v. State, 234 Kan. 554, 568, 675 P.2d 57 (1984).

(C) LEO's who failed to obtain correct address of residence to be searched made discretionary choice resulting in no liability. Schulte v. City of Dodge City, Kan., 630 F.Supp. 327, 329 (1986).

3. Traffic signal malfunctions/destruction/removal. K.S.A. 1997 Supp. 75-6104(h).
(A) City becomes liable if fails to correct within a reasonable time after actual or constructive notice.
4. Failure to Provide/Method of Provide Police or Fire Protection. K.S.A. 1997 Supp. 75-6104(n).
(A) City is not liable for a burglary that could have been prevented if the city had more patrol cars. If a fireman negligently goes to the wrong house and chops a hold in the roof, city is liable.

(B) No protection under subsection (n) where LEO breaches a specific duty owed to an individual rather than the general public. Washington v. State, 17 Kan. App. 2d 518, 526, 839 P.2d 555 (1992).


5.1 General Principles

    LEOs are not immune from criminal prosecution or criminal liability for violation of any law, although they have limited privileges to violate certain laws in certain circumstances. For example, LEO's operating a vehicle can exceed speed limits and disregard stop signals when pursuing a suspect (although they still have duty to drive safely under circumstances - see K.S.A. 8-1506).  In other words "10-38" offers no legal protections because you are a law enforcement officer and you can be prosecuted for violating traffic laws.  Another example:  LEOs can commit assault and battery when defending themselves or others and circumstances warrant it (K.S.A. 21-3412). However, abuse of the privilege results in its loss and will lead to a criminal prosecution.

5.2 Federal Criminal Liability

(a) 18 U.S.C. § 242. Deprivation of rights under color of law.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

(b) 18 U.S.C. § 241. Conspiracy against rights.

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured--They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

(c) The "Violent Crime Control and Law Enforcement Act of 1994" added several police officers to the streets, but may have some unintended consequences. The bill amended 18 U.S.C. § 922(d) to state:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--
. . .
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that--
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

(B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

    This subsection shall not apply with respect to the sale or disposition of a firearm or ammunition to a licensed importer, licensed manufacturer, licensed dealer, or licensed collector who pursuant to subsection (b) of section 925 of this chapter is not precluded from dealing in firearms or ammunition, or to a person who has been granted relief from disabilities pursuant to subsection (c) of section 925 of this chapter.

5.3 State Criminal Liability

    Common situations that law enforcement officers face could easily lead to:

1. Voluntary manslaughter K.S.A. 21-3403(b)
2. Involuntary manslaughter K.S.A. 21-3404
3. Vehicular homicide K.S.A. 21-3405
4. Assault K.S.A. 21-3408
5. Assault of a LEO K.S.A. 21-3409
6. Aggravated assault of a LEO K.S.A. 21-3411
7. Battery K.S.A. 21-3412
8. Battery against a LEO 21-3413
9. Aggravated battery K.S.A. 21-3414
!0. Aggravated battery against a LEO K.S.A. 21-3415
11. Criminal threat K.S.A. 21-3419
12. Kidnaping K.S.A. 21-3420
13. Aggravated kidnaping K.S.A. 21-3421
14. Interference with custody of a committed person K.S.A. 21-3423
15. Criminal restraint K.S.A. 21-3424
16. Mistreatment of a confined person K.S.A. 21-3425
17. Blackmail K.S.A. 21-3428
18. Stalking K.S.A. 21-3438
19. Abuse of a child K.S.A. 21-3609
20. Criminal trespass K.S.A. 21-3721
21. Injury to a domestic animal K.S.A. 21-3727
22. Computer crime K.S.A. 21-3755
23. Perjury K.S.A. 21-3805
24. Compounding a crime K.S.A. 21-3807
25. Obstructing legal process or official duty K.S.A. 21-3808
26. Aiding escape K.S.A. 21-3811
27. Harboring or concealing a criminal K.S.A. 21-3812
28. Interference with the administration of justice K.S.A. 21-3816
29. Simulating legal process K.S.A. 21-3820
30. Tampering with a public record K.S.A. 21-3821
31. False signing of a petition K.S.A. 21-3823
32. False impersonation K.S.A. 21-3824
33. Aggravated false impersonation K.S.A. 21-3824
34. Traffic in contraband in a correctional institution K.S.A. 21-3826
35. Criminal disclosure of a warrant K.S.A. 21-3827
36. Interference with the conduct of public business in public buildings K.S.A. 21-3828
37. Aggravated interference with the conduct of public business in public buildings K.S.A. 21-3829
38. Witness or victim intimidation K.S.A. 21-3832
39. Aggravated intimidation of a witness or victim K.S.A. 21-3833
40. Unlawful disclosure of authorized interception of wire, oral or electronic communications K.S.A. 21-3838
41. Bribery K.S.A. 21-3901
42. Official misconduct K.S.A. 21-3902
43. Presenting a false claim K.S.A. 21-3904
44. Permitting a false claim K.S.A. 21-3905
45. Misuse of public funds K.S.A. 21-3910
46. Unlawful use of names derived from public records K.S.A. 21-3914
47. Eavesdropping K.S.A. 21-4001
48. Breach of privacy K.S.A. 21-4002
49. Denial of civil rights K.S.A. 21-4003
50. Maliciously exposing a paroled or discharge person K.S.A. 21-4006
51. Criminal use of weapons K.S.A. 21-4201(5), (6) (8) and (9)
52. Criminal disposal of firearms K.S.A. 21-4203
53. Criminal possession of a firearm K.S.A. 21-4204(a)(1)
54. Defacing identification marks of a firearm K.S.A. 21-4205
55. Traffic laws and ordinances - emergency vehicles are privileged under certain circumstances K.S.A. 8-1506.

C:\Program Files\WS_FTP\civ&crimcover.wpd. Rev. A 3/2/98