Session 2 Week 4

Question 1

Sovereign Immunity

Answer 1

Started with either Roman Law or English Common Law based on the belief that the King could do no wrong.

Question 2

Sovereign Immunity, the great concern from the states was what?

Answer 2

Who ultimately ruled, the federal Government or the individual state.

Question 3

The 11th amendment does what?

Answer 3

Limited the judiciary and shielded government with sovereign immunity. The judicial powers of the US shall not be construed to extent to any suit in law or equity commenced or prosecuted against one of the US citizens of another state by citizens or subjects of any foreign state.

Question 4

In 1821 in Cohen V Virginia, the supreme court ruled the Federal Government was immune but?

Answer 4

citizens could bring suit against a state if the action was based on a constitutional guarantee and was later amended to prohibit suits absent the states consent.

Question 5

In 1834 the Supreme Court held in US v Clark that even suits based on constitutional guarantees would be barred; why?

Answer 5

Public service would be hindered and public safety endangered if the state could be subjected to a suit.

Question 6

Today while states are still protected, unless voluntarily relinquish their protection, municipalities are not. Therefore, municipal officers are?

Answer 6

susceptible to civil suit.

Question 7

When should pursuits be authorized?

Answer 7

Exigent circumstances where their is a reasonable belief that the continuing conduct of the violator presents an immediate and life threatening danger. Murder, Sex Bat, Manslaughter etc.

Question 8

Supervisor responsibilities in a pursuit?

Answer 8

Get on radio
determine reason for pursuit
clear traffic
Air Support K-9 (K-9 not involved in pursuit)
# of vehs involved
conditions road weather speed congestions
coordinate other units report to scene

Question 9

With pursuits, keep foremost ?

Answer 9

The community comes first.

Question 10

More cops are killed by______ than _______?

Answer 10

Crashes than bullets

Question 11

Three old rules in order?

Answer 11

Sovereign Immunity
Negligence/Duty
Proximate Cause

Question 12

Municipalities lost their sovereign immunity in high speed pursuits based on what case law?

Answer 12

City of Pinellas Park Vs. Brown (7/23/1992)

Question 13

In the City of Pinellas Park v Brown it stated in the absence of an emergency…?

Answer 13

The method chosen for engaging in hot pursuit will remain an operational function that is not immune from liability if accomplished in a manner contrary to reason and public safety.

Question 14

In Pinellas Park V Brown there were two main points. What were they?

Answer 14

The actions were contrary to Reason and Public Safety. At the officer failed to clear the intersection with the pursuit coming.

Question 15

Proximate Cause: Definition of foreseeability issue

Answer 15

“Human experience suggests serious bodily injury likely to result based upon alleged facts.”

Question 16

Fourth Amendment Reasonableness standard states what as it applies to pursuits?

Answer 16

High speed police chases with n intent to harm suspects physically do not give rise to liability under the 14th amendment. In the Lewis case the court indicated that a seizure must be an intentional act, an accidental seizure does not apply for 4th amendment purposes.

Question 17

Reasonableness standard (4th amendment): Allegation that a pursuit was undertaken with deliberate indifference to passenger survival was?

Answer 17

insufficient to state a substantive due process claim.

Question 18

In Scott v Harris it defined two things about PIT

Answer 18

PIT is deadly use of force and reasonableness standard applies, meaning if there are others who would be endangered.

Question 19

Key factors in developing police pursuit policies

Answer 19

Use of force, roles and responsibilities, communications responsibilities, environmental conditions, reasons for initiating the pursuit, reasons for terminating the pursuit, interjurisdictional pursuits, vehicles, use of emergency warning devices, use of stopping devices (Most will result in use of force, Supervisor must take charge)

Question 20

Supervisor’s responsibilities

Answer 20

Time place location supervisor take control.
Must come on the air and take charge
Need unambiguous reason for the pursuit
Needs to limit the # of units involved
Needs to direct units or other resources
Need to maintain radio contact with dispatch and relay updates as to operational or tactical potions and conditions.

Question 21

Negligent appointment defined?

Answer 21

The hiring of an employee who was not qualified for the position. A cause of action exists against an employer for negligent hiring or retaining in his employment, The employee he knew or should have known was unfit for the job so as to create a danger of harm to third parties.

Question 22

Deliberate indifference

Answer 22

You knew or should have known that your act or omission to act caused harm or created the danger of harm.

Question 23

10 steps to hire

Answer 23

1 Advertise 2 short form application 3 written exam with bearing on law enforcement (pass/fail) 4 Agility test with applicant responsible for doctors approval (pass/fail) 5 long form application by hand in ink with statement on omission or admission 6 oral board (pass/fail) 7 Polygraph or CVSA (used as tool for background 8 background (pass/fail) 9 conditional offer (is specific) 10 psych/medical exam

Question 24

Negligence hiring claim

Answer 24

The employer’s negligence in hiring or retaining the employee was the proximate cause of the injury

Under a facially valid screening program a single incident of hiring is not sufficient to show liability unless a reasonable background examination would lead a reasonable policy maker to conclude that to the applicant would lead to a deprivation of a plaintiff’s constitutional right.

Question 25

Recommendations to avoid Liability: what is the most important component in the human resources system

Answer 25

Selection process

Question 26

What should you obtain from the applicant with their application?

Answer 26

Authorization to contact all former employers educational institutions and personal references

Question 27

Import things to do in a background

Answer 27

Contact each personal reference listed and follow up Ask all former or existing employers and references to the applicants honesty competency reliability and any other pertinent information

Question 28

What is required from anyone who served in the military

Answer 28

DD214

Question 29

What guidelines should you follow when doing background?

Answer 29

FDLE and comply with FSS 943.13 officer minimum qualification

Question 30

In both negligent hiring and negligent retention liability cases it is necessary to?

Answer 30

allege deliberate indifference

Question 31

Negligent hiring is the ?

Answer 31

Breech of the employers' duty to only hire qualified employees capable of performing the task in the job description.

Question 32

Negligent retention is

Answer 32

the basis for the employer' liability occurs during the course of employment

Question 33

In negligent retention cases the employer becomes aware or should have become aware of the employees unfitness for employment and?

Answer 33

the employer fails to take further action such as investigation discipline retraining discharge or reassignment and is subject to the charge of deliberate indifference and negligent retention.

Question 34

The importance of the probationary term can be the most valuable time for the employer to

Answer 34

Evaluate the fitness for continued employment

Question 35

The necessity for a performance appraisal system requires what of supervisors

Answer 35

Constant retraining on how to complete them. Before transfers employees should take eval with them

Question 36

Negligent assignment defined

Answer 36

The assignment of employees to positions or tasks for which they are either unqualified or ineligible

Question 37

Negligent entrustment defined

Answer 37

The requirement for the agency to prevent or disallow an employee's use of the equipment or materials they are not qualified to use.

Question 38

Failure to train is a custom/practice only if

Answer 38

Training is inadequate (Look to see if the training is related to specific duties or tasks. Look at rules and regulations and procedural manuals.) (It is not enough to relate that the employee/supervisor was not trained properly. The failure may be due to other mistakes.

Question 39

Inadequate training in high-risk areas such as firearms, pursuit driving, and the use of force can constitute?

Answer 39

Deliberate Indifference.

Question 40

There should be 3 personnel jackets for every employee. Where are they?

Answer 40

Human Resources Internal Affairs Training

Question 41

Many administrators are under a mistaken idea that academy and/or statutory mandated requirements for , frequently the training is reviewing officer training act as a bar to civil liability. Remember state statutes and standards serve only as?

Answer 41

a minimum plateau for certification. They do not address the sufficiency of training or how the training is related to spIecific high-risk tasks

Question 42

Case study Gold v City of Miami: In presenting evidence that deliberate indifference to training issues was the cause for injury the compliant needs to show...?

Answer 42

There was an obvious need for more or better training and that the employer knew or should have known that their failure to adequately train would result in a foreseeable injury

Question 43

Frequency of training, frequently the training should be?

Answer 43

Reviewed, evaluated, and modified.

Question 44

Judicious administrators need to do what in regards to training?

Answer 44

Voluntarily subject training to a critical review as if they were an injured plaintiff seeking to recover damages.

Question 45

Inadequate/insufficiency of supervision: The agency and its supervisors have a duty to?

Answer 45

Provide proper supervision

Question 46

To prove inadequate or insufficient training you must do what?

Answer 46

Show personal involvement in wrongful act to attach liability Needs to show deliberate indifference A supervisor is not liable solely because a subordinate commits a constitutional wrong however supervisors may be liable when the failure to direct reflects a conscious indifference to constitutional rights.

Question 47

Steps to minimize liability: a good supervisor will set up?

Answer 47

controls that enable them to take corrective action and guide employees within policies and procedures

Question 48

To minimize liability there needs to be?

Answer 48

a system that allows for the delegation of tasks and maintains a motivating climate.

Question 49

To minimize liability employees should be given?

Answer 49

responsibility in a step-by-step manner and supervisors can demonstrate a documented history of supervisory control and corrective instructions.

Question 50

Failure to direct is from not doing seven things. What are they?

Answer 50

1. Anticipating problems arising in the field 2. Minimizing police discretion at the operational level 3. Promulgate comprehensive written directives that guide police behavior. 4. Policy and procedure books should be kept in a manner to include an effective date. 5. In order for the policy manual to be effective they must be kept current with documented distribution and inspected by supervisors 6. New policies need to be explained and discussed with examples given and signed for by the employee 7. Supervisor policy manuals serve a seperate purpose from Departmental policies and procedures.

Question 51

Things to do when reviewing policies

Answer 51

A. Is the policy current? B. Does the organization/division/unit/section operate in the same way it did when the policy was written? C. Has the policy interfered with operations?

Question 52

No policy should have a sentence more than

Answer 52

25 words and should not contain words that have to be looked up. Give examples of the policy in the policy. written a simple as you can make it.

Question 53

Things to do when reviewing policies?

Answer 53

D. Has the policy adversely affected employee moral or productivity? E. Have complaints resulted from the policy? F. Are there laws, ordinances, contractual language, or lawsuits that affected the manual?

Question 54

Things to do when reviewing policies?

Answer 54

G. Has the policy been uniformly and consistently enforced?(investigated and addressed) H. Is there a standard operating procedure connected to the policy? I. Is the policy necessary? J. Does the policy reduce legal exposure in personnel matters?

Question 55

Failure to discipline: The failure to correct problems that you are aware of or should be aware of may?

Answer 55

Constitute a custom or unwritten policy

Question 56

Problems that are unaddressed may become a custom or policy when:

Answer 56

1. The organization tacitly sanctions the actions | 2. Exhibits deliberate indifference toward police misconduct

Question 57

Why do we discipline?

Answer 57

Correct conduct.

Question 58

Failure to discipline can mean?

Answer 58

Big Liability

Question 59

Just cause for discipline

Answer 59

1. A violation of rules where the charges have been factually proven 2. Make sure the punishment is proportionate 3. The employee conduct was thoroughly investigated. 4. Look at desperate treatment and conduct similar 5. Was the action or inaction of the employee a by product of training, policy or supervision

Question 60

Just cause for discipline

Answer 60

6. Review the employee's history 7. Were there mitigating circumstances 8. Progressive or corrective discipline 9. Examined for motivated anti-union bias 10. Was the rule clear, understandable and unambiguous 11. Would the officer engage in similar conduct in the future 12. Was the employee accorded due process.,

Question 61

Failure to discipline relates to the department's failure to ?

Answer 61

Provide an effective system of accountability it goes with an inadequate citizens complaint process

Question 62

Discipline Considerations

Answer 62

A;;elate agencies courts mediators and particularly juries are sympathetic for employees terminated without warning.

Question 63

A progressive discipline system should be

Answer 63

a rigid policy system of specific offenses steps and penalties such as verbal warnings written warnings, terms of suspension and incidents of termination

Question 64

Things to remember about discipline. Two things

Answer 64

1. It is often necessary to go directly to termination 2. Even though we label a oral reprimand as being only oral it still needs to be documented in some format for evaluation purposes.

Question 65

The five "W's" of the written reprimand

Answer 65

Who what where when and why

Question 66

Due process

Answer 66

Tenured public employees have property interest in the continuation of their employment. Disciplinary action that adversely affects their employment or terminates their employment is subject to the due process clause of the 14th amendment which means they must be given notice of any charges brought against them.

Question 67

Stigma Applies when?

Answer 67

derogatory information such as dishonesty instances of moral turpitude or other labeling types of allegations impair an employees ability to seek employment and or impairs their reputations with the professional community Probationary termination does not apply

Question 68

Stigma where allegations impose a stigma on the employee they have a right to a ?

Answer 68

Liberty interest type hearing "Loudermill hearing" which is a pre termination hearing

Question 69

Failure to protect findings of liability cases are rare based on two factors

Answer 69

1. doctrine of sovereign immunity and | 2. the "duty at large Rule" or "Public Duty Rule"

Question 70

Employee Privacy, most states recognized some type of privacy issue tort, they fall into four types of torts.

Answer 70

1. Commercial Appropriation of a name. 2. Publicity that places an individual in a false light. 3. Unreasonable intrusion into the solitude or seclusion of an individual, physical or otherwise. 4. Unreasonable publication of private facts (It is usually number four that concerns PD's and employee investigations.

Question 71

Intrusions usually mean...

Answer 71

surveillance or unauthorized physical presence, breaking and entering, or unauthorized photography and intrusion into private activities and other such matters.

Question 72

Searches are covered by the 4th amendment and states

Answer 72

that it protects people to be secure in their persons houses papers and other effects against unreasonable searches and seizures.

Question 73

The SCOTUS has recognized that public employees have a reasonable expectation of privacy in

Answer 73

their effects including their desk file cabinets lockers and briefcases

Question 74

Drug Testing is not prevented by the 5th amendment however

Answer 74

blood urine follicle and breath tests constitute a search and under the fourth amendment all searches must be reasonable and job related

Question 75

Departmental Rules and Regulations: Rules are defined as

Answer 75

Departmental directives that carry the weight of a direct order by command personnel

Question 76

Regulations are defined as

Answer 76

Delineate employee behavior in a broader scope,

Question 77

Policies are defined as

Answer 77

Guidelines to behavior that conform to pre-described avenues of employer design.

Question 78

Procedures are defined as

Answer 78

How to accomplish pre-described tasks

Question 79

In the construction of rules, regs, policies etc be sure to not

Answer 79

over legislate the behavior of the employee so as to stifle their situational evaluation of an incident

Question 80

When constructing policy procedures rules etc, it is imperative in the eyes of the courts to ensure..

Answer 80

the agency has manipulated these examples in a way that would have them apply specifically to the agency's employees demographic service area and fall within the laws and ordinances of the jurisdiction

Question 81

Speech issues; most issues concern public vs private speech, there is the first amendment; however when government employees speak not as government representatives but as

Answer 81

Private citizens on matters of public concern their right to freedom of speech must be weighed against the government's interest.

Question 82

Speech Issues whistle blower act, the act must be

Answer 82

a violation of law to qualify for whistle blower

Question 83

Image issues, the courts have continually supported the employer in their efforts to have their employees uniform in appearance for purposes of:

Answer 83

1. Recognized identification 2. Promoting esprit de corps 3. Issues of uniformed authority

Question 84

In order to be sued for Use of Force the plaintiff must show?

Answer 84

That it is a result of the action of the defendant that the plaintiff was deprived of some right, privilege, or immunity guaranteed by the constitution or laws of the US and that the defendant acted uner color of state or local law.

Question 85

The use of force is a seizure s used to determine objective reasonable

Answer 85

the 4th amendment

Question 86

Objective reasonableness defined

Answer 86

it is determined as of the instant the force was used. The lawfulness of the officer's decision will turn on the facts and circumstances know to the officer at the time the force was used. What was determined or discovered after the force was used cannot be used to justify the use of force and would normally not be admissible as evidence

Question 87

Factors used to determine objective reasonableness

Answer 87

``` The scope of the intrusion The manner of intrusion Place where intrusion occurred Need to perform official duties Justification of intrusion Facts and circumstances ```

Question 88

Factors used to determine objective reasonableness continued

Answer 88

Severity of crime at issue Did suspect pose immediate threat to officer or others Did suspect actively resist Did suspect attempt to evade arrest by fleeing

Question 89

Supreme Court recognized that police must make split second decisions in circumstances which are tense uncertain and rapidly evolving and this in determining

Answer 89

whether or not excessive force was used, the court or jury should stand in the shoes of the officer at the time and under the ci8rdumstances the force was used as opposed to judging with the benefit of hindsight

Question 90

Under 18 U.S.C. 242 it is necessary to prove willful intent for use of force cases as well as

Answer 90

If the officer has probable cause to believe a felony has occurred or that citizens or the officer are threatened with death or serious physical harm from a fleeing felon, the use of force may be justified

Question 91

The 8th amendment prohibits

Answer 91

the imposition of cruel and unusual punishment. It only applies to persons who have been convicted of a criminal offense and are incarcerated ****applies to convicted persons only and prohibits the unnecessary and wanton infliction of pain.

Question 92

8th amendment continued

Answer 92

Characterized by obduracy i.e. holding against good or moral influence and wantonness Good faith effort to maintain or restore discipline or order Extent of injury inflicted Any attempt to temper severity of force

Question 93

The only four reasons to use force

Answer 93

Affect an arrest Prevent an escape Self-Defense Protection of another person

Question 94

ADA defines disability to mean?

Answer 94

A physical or mental impairment that substantially limits one or more of the major life activities of an individual and A pattern or record of having such impairment

Question 95

ADA does not require

Answer 95

Affirmative action to hire or promote individuals with a disability

Question 96

ADA exists to

Answer 96

prohibit discrimination in employment against qualified individuals

Question 97

Two pronged disability test

Answer 97

The individual must have a physical or mental impairment and The impairment must substantially limit one or more substantially limit one or more of the individual's major life activities

Question 98

Example of physical or mental impairments

Answer 98

Any physiological disorder Cosmetic disfigurement anatomical loss affecting one or more of the following systems (neurological special sense organs speech organs reproductive hemic skin musculoskeletal respiratory cardiovascular digestive lymphatic endocrine

Question 99

The physical or mental impairment must substantially limit one or more of the individuals major life activities such as

Answer 99

``` caring for ones self Performing manual tasks Walking Seeing Speaking Breathing Learning Working ```

Question 100

What is the difference between simple negligence and

Answer 100

Simple negligence is insufficient to establish an administrator liability for inadequate training supervision or controlling subordinates Deliberate indifference is the final policy authority knew or should have known that actions taken by them or their failure to act could cause the deprivation of constitution guarantees and requires proof of specific knowledge of risk of harm and disregard for the risk by failing to take reasonable steps to prevent it

Question 101

Negligence

Answer 101

a breach of a legal duty owed to the plaintiff by any action of the defendant which is the proximate cause of an injury to the plaintiff that falls below a reasonable standard of care. (Reasonable person)

Question 102

Negligence Per Se

Answer 102

Conduct whether of action or omission which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances either because it is a violation of a statute or valid municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilt of it.

Question 103

Foreseeability problems

Answer 103

Defendant's liability must stop short of far-reaching and bizarre consequences in determining proximate causes, The difficulty lies in defining where the cut off should be. The difficulty in formulating mechanical rules that would apply to all cases is an i8mpossible task, there fore the matter must be determined case by case.

Question 104

Foreseeability

Answer 104

The defendant is liable, as a general rule only for those consequences of his negligence that were reasonable foreseeable at the time he acted. A reasonable person would know if the activity involved in would result in harm

Question 105

BFOQ

Answer 105

Bona fide occupational qualifications employers may legitimately discriminate in employment practices, hiring transfer training and assignment if the employer can show a legitimate and necessary business/occupational reason; job relatedness

Question 106

Who sets the minimum wage, overtime pay, equal pay, record keeping and child labor standards for employees.

Answer 106

Fair Standards Labor Act

Question 107

Any person acting directly or indirectly in the interest of an employer in relationship to an employee and includes a public agency.

Answer 107

Employer

Question 108

Any individual employed by an employer.

Answer 108

Employee

Question 109

Sexual Harrasment

Answer 109

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.