Liability Update For Law
Enforcement

 A
Monthly Publication of

Hilyard, Bogan & Palmer, P.A.

October 2011

Volume 1, Number 1

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Hilyard, Bogan & Palmer, P.A.

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Law
enforcement officers are frequently forced to fire upon suspects who are
using automobiles as deadly weapons.  A typical scenario involves a
suspect driving toward a law enforcement officer who is on foot and fires
upon the moving vehicle in self defense.  All too often, suspects are
fatally wounded in such scenarios, resulting most often in wrongful death
lawsuits.  Since the firing upon a moving vehicle by a law enforcement
officer can have very grave consequences, the International Association of
Chiefs of Police
("IACP")
has developed a model policy which discourages the practice of firing upon a
moving vehicle and limits officers’ discretion in such cases.  Many
large cities, including Los Angeles and Chicago, have already adopted that
model policy of the IACP.  Law enforcement agencies worldwide have long
looked to the IACP for assistance in defending policies and practices against
liability litigation. 

In addition
to discouraging the practice of firing upon a moving vehicle and limiting
officers’ discretion in such cases, the IACP has also recommended that
officers move out of the way rather than fire on moving vehicles.  The
rationale behind that recommendation assumes that if an officer has time to
fire a weapon, he or she probably has time to step out of the way of the
moving vehicle.  According to the IACP, 90 percent of shooting instances
take three second or less, such that officers don’t have time "to engage
in decision-making about the degree of injury that will be
inflicted."  The IACP has noted that research shows that police
shootings under deadly force conditions very often miss their targets. 
The IACP has also noted that, should officers wound the driver of a moving
vehicle, an uncontrolled vehicle might cause even greater damage.

Use-of-force
policies of law enforcement agencies typically prohibit shooting at moving
vehicles unless there is "imminent danger" to police or
others.  The IACP’s model policy would appear to discourage firing upon
a moving vehicle even when there is imminent danger to police and
others.  In any event, we can expect that retained police liability
experts hired by plaintiffs in future lawsuits arising out of these scenarios
will be quoting IACP’s model policy concerning firing at moving vehicles.

The Florida
Legislature has revised the language of Section
768.28(5) of
the Florida Statutes governing sovereign immunity as it relates to tort
actions against the state, its agencies and its subdivisions, including the
cities and counties of Florida.  Effective October 1, 2011, the new
version of Section 768.28(5) raises from $100,000.00 to $200,000.00 the
maximum amount Florida governmental entities must pay as tort damages to an
individual in a particular incident, absent the enactment of a claims
bill.  The new version of Section 768.28(5) also raises from $200,000.00
to $300,000.00 the maximum amount that must be paid to all parties arising
out of the same incident.  The new revisions apply to causes of action
that accrue on or after October 1, 2011.

Section
562.11
of the Florida Statutes prohibits the selling, giving or serving of alcoholic
beverages to a person under age 21.  Although the Florida Legislature
amended Section 562.11 effective July 1, 2010, the significant changes to
Section 562.11 have not been widely covered by the media.  The new
version of the statute provides a complete defense to a charge of violating
the statute: (1) if the accused was presented with false evidence that the
buyer or recipient was 21 years of age; (2) the buyer’s or
recipient’s appearance is such that a prudent person would believe the
buyer or recipient to be older than 21 years of age; and (3) the accused
carefully checked a driver’s license or state identification card
issued by any state in the United States, a passport, or military
identification card presented by the buyer or recipient and relied upon the
validity of that identification in good faith as proof that the
buyer/recipient was over 21 years of age.

In April of
2008, the Florida
Criminal Justice Standards and Training Commission approved
training academies teaching lateral
vascular neck restraints (“LVNR”)
as an approved use of force technique.  Since then, some Florida law enforcement agencies have approved LVNR for their officers.  Even the
Florida Department of Law Enforcement has been asked to consider approving
LVNR for implementation.  Advocates of LVNR assert that the new
techniques are unlike some of the choke holds that were previously used by
law enforcement agencies in the 1980’s.

The few
cases that exist shed little light on whether LVNR is considered deadly
force.  However, in evaluating whether LVNR should be utilized by a
particular law enforcement agency, one might consider the following cases.
See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75
L.Ed. 2d675 (1983) (a person whom Los Angeles police officers subdued with a
choke hold sued the city seeking to enjoin its police from certain use of
choke holds in the future; the Court held that a plaintiff must show that he
has sustained or is immediately in danger of sustaining some direct injury); Everett
v. Marianna Police Department, et al., 2008 U.S. Dist. LEXIS 5691 (N.D.
Fla. 2008)(the Court declined to rule that a choke hold used on the plaintiff
in effectuating an arrest was unconstitutional as a violation of the Fourth
Amendment); Williams v. City of Daytona Beach, et al., 2006 U.S. Dist.
LEXIS 5776 (M.D. Fla. 2006) (federal court held that officer was not entitled
to final summary judgment on qualified immunity grounds based on disputed
issues of fact; the plaintiff’s disputed excessive force claim alleged
he was placed in a choke hold for five to ten seconds after he was
handcuffed); Owens, et al., v. City of Ft. Lauderdale, et al., 174
F.Supp. 2d 1298 (S.D. Fla. 2001)(city sued after officers applied a lateral
vascular neck restraint on the plaintiff who died; material issues of fact
existed as to whether force used by the officers was excessive); Post
v. City of Ft. Lauderdale, 7 F.3d 1552, 1559-60(11^th Cir.
1993), modified 14 F.3d 583 (11th Cir. 1994)(holding that the application of
a choke hold, although unnecessary, was not, as a matter of law, unreasonable
under the circumstances, and finding qualified immunity); Jackson v. City
of Albany, Georgia, et al., 1998 U.S. Dist. LEXIS 22423 (N.D. Ga.
1998)(quoting Tennessee v. Garner, 471 U.S. 1, 11, 85 L. Ed. 2d 1, 105
S.Ct. 1694 (1985))(“Deadly force, including choke holds, may be used to
prevent the escape of a felony suspect where the suspect poses an immediate
threat to the officers or others.”); Gahn v. Fujino, 194 U.S.
App. LEXIS 30018, 194 WL 587523, at *3 (9th Cir. October 21, 1994)(“A
choke hold can cause serious bodily injury or even death.”); Parker
v. State of Florida, 908 So.2d 1099 (1st DCA Fla. 2005)(criminal
defendant was entitled to a jury instruction on the justifiable use of
non-deadly force allegedly in self defense to an officer’s choke hold);
Locke v. State of Florida, 588 So.2d 1082 (4th DCA Fla.
1991)(“At the outset we agree with appellant that it would not
ordinarily be proper for a police officer to forcibly choke a person in order
to prevent the swallowing of a small amount of drugs.  We say
ordinarily, because we can foresee situations, such as where an officer is
trying to save someone’s life by preventing the oral ingestion of
drugs, where such conduct may be justified.  We do not know if that was
a motivation here.”).