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Officer Liability -- State Law Torts and the FTCA (podcast transcript)

Solari:    Hi.  Welcome to our series of Podcasts on officer liability.  I’m Jenna Solari, a Senior Instructor in the Legal Division of the Federal Law Enforcement Training Center in Glynco, Georgia.  With me today is Tim Miller, the Legal Division Branch Chief.  Tim and I are going to talk about the various liability issues faced by federal law enforcement officers.  We’ll distinguish the different types of lawsuits, or civil actions, a law enforcement officer could face, and we’ll also discuss how to get out from under those lawsuits.  Near the end of the series, we’ll also address a couple of criminal statutes.  

Tim, I think it’s first important to distinguish a tort, which is the basis for a civil suit, from a crime, which is the basis for a criminal prosecution.  Could you talk about that for a minute?

Miller:    Sure.  Sometimes it can be tricky, since the same act can be both a tort and a crime.  A tort is a civil wrong, other than a breach of contract, against a particular person or group.  It’s something for which a private person can file a lawsuit.  Let’s assume you live next door to me.  You’re doing some construction in your yard, and you’re being pretty careless about it.  Because you’re not being as careful as you should, you knock down a large part of my fence, which cost me a lot of money to put up.  When I ask you about it, you refuse to pay to have it fixed.  If it’s important enough to me, I’ll file a lawsuit to force you to reimburse me for the damage.  The state really doesn’t get involved, because the dispute is between you and me. The lawsuit would be captioned “Miller v. Solari”, I’m the plaintiff, and you’re the defendant.  If I win, you’ll have to pay to fix my fence.  That monetary award is called “damages.”  The court could also issue an injunction, which is an order to do or not do something.  In this case, the court might issue an injunction telling you to stop doing construction within so many feet of my property line.  

Now a criminal prosecution is something totally different.  In a criminal action, you know, the government brings the charges.  Let’s say when I confront you about knocking down my fence, you get angry and punch me in the nose.  I call the police, and you’re charged with the state crime of battery.  Even though I’m technically the victim, we regard crimes as wrongs against society as a whole.  In this case, so in this case the action  would be described as “State v. Solari,” and the state of Georgia would bring the case against you.  If the state wins, you may have to serve time in jail, do community service, or pay a fine.  In the most serious criminal cases, you may even face the death penalty.  The goal of criminal prosecutions isn’t to compensate the victim, but to punish, to reform, and deter the offender.

Solari:    And, as you said earlier, the same action could be both a tort and a crime.  When you confronted me about the fence, for instance, and I got mad and punched you in the face, I broke the law, so I can be prosecuted for the crime of battery.  Battery is also a state law tort, though, so you could also sue me for that same conduct.  The state’s prosecution and your lawsuit would be two separate proceedings.  And as you noted, if I’m convicted in the criminal case, the state would ask that I serve jail time or maybe probation. In the lawsuit, you would ask that I be forced to pay damages to cover the time you lost at work, your medical bills, and perhaps for pain and suffering.  

One good example of a prosecution followed by a lawsuit is the O.J. Simpson case.  O.J. was acquitted of murder charges in state court, but he was later found liable in the wrongful death suits that followed.  That’s in part because the burden of proof is a lot lower in a civil suit.  To win a civil suit, a plaintiff has to prove his case only by a preponderance of the evidence.  Now that simply means that he has to have 51% of the evidence in his favor, and he wins.  As we all know, however, the government has to prove its case, its prosecution, beyond a reasonable doubt to convict a defendant in a criminal action.

Miller:    Let’s limit our discussion here today though to torts.  We’ll tackle criminal prosecutions in a later session.  We need to first distinguish between negligent torts, intentional torts, and finally constitutional torts.  An officer has to know what kind of lawsuit he’s facing before he can figure out what kind of defense he can raise.  

Solari:    Exactly.  For federal officers, negligent torts are the most frequent type of state tort action.  That’s because of all the government vehicles we have out on the roads.  To win a suit in negligence, a plaintiff has to show that the defendant had a duty to act with reasonable care, that the defendant breached that duty, and that the defendant’s breach caused some kind of damage to the plaintiff.  So, let’s say I’m driving my G-car to work while I’m drinking coffee, I’m text messaging somebody, and I’m putting on my mascara.  Because I’m not paying any attention, I rear end somebody at a red light.  That would be a negligent tort.  I wasn’t being as careful as a reasonable person should be while driving my car.

In some cases the standard of care is not just that of a reasonable person though, but that of a reasonable law enforcement officer.  That’s because, as professionals, officers are expected to know how to handle certain situations that an ordinary civilian just wouldn’t really know much about.  I mean you don’t expect your brain surgeon to operate on you as carefully as an ordinary reasonable person, right?  You want him to be an ordinary, reasonable brain surgeon!  So we hold professionals to a higher standard.

Miller:    Alright.  Well let’s talk a little more about that duty element.  Do law enforcement officers have a duty to protect everyone who needs law enforcement assistance?

Solari:    Believe it or not Tim, they don’t.  Even if a police officer sees someone in danger, the law does not typically require that the officer do anything about it.  Now I know that sounds horrible at first, but there’s actually a good reason for it.  Police just can’t be all things to all people at all times.  I mean think about it, making officers legally liable to everyone who needs help would just be setting them up to fail.  If five different people in five different places need help, and there’re only two officers in the area who can assist, somebody just isn’t going to get helped in time.  There’s nothing we can do about that except try our best.  Now, with that said, there are certain circumstances in which officers are obligated to protect people.

Miller:    Right.  Now, if officers have promised to protect a specific person, like a confidential informant or a witness, then they have to follow through on that promise.  Also, and this is important, once someone is in an officer’s custody, the officer assumes responsibility for that person’s safety and his well-being.  That’s why officers have to be careful about how they escort handcuffed prisoners.  If they’re not being as careful as they should, and the prisoner falls and knocks his teeth out or hits his head, the officer would be liable for those injuries.

Solari:    And even if an officer has no duty to help, if he decides to do so anyway, then he has a duty to render that assistance reasonably.  In other words, if an officer sees someone having a heart attack and volunteers to perform CPR, the officer needs to do that capably and reasonably, or he may be responsible for any injuries he causes if he fails to do the procedure properly.

Miller:    I’ve heard about some states and the federal government enacting Good Samaritan laws to help protect officers in those situations.

Solari:    The federal government does have a Good Samaritan provision, although it hasn’t been formally codified yet.  It protects those law enforcement officers with 6(c) retirement coverage who intervene in certain pretty limited situations.  It does not provide them any additional authority or law enforcement power, but it helps them avoid personal liability.  We can talk about the Good Samaritan statute a little bit more when we discuss the Federal Tort Claims Act.

Miller:    Ok, so we’ve defined negligent torts.  Again, a negligent tort would be something like a car wreck in the G-ride when an officer isn’t driving as carefully as he should, or letting a prisoner in handcuffs fall down the stairs.  Now let’s define intentional torts.

Solari: Ok.  Intentional torts are also a creature of state law.  To win a lawsuit for an intentional tort, a plaintiff has to show that the defendant intentionally, but without authority, committed an act that caused some kind of reasonably foreseeable damage to the plaintiff or to the plaintiff’s property.  Some examples of intentional torts would be battery, assault, false imprisonment, false arrest, trespass to land, and damage to personal property.  Notice that some of those could also be prosecuted as crimes in that separate criminal action.

Miller:    So if an officer makes an arrest without probable cause, or uses force in a situation that doesn’t call for it, he could be sued under state law for false arrest or battery?

Solari:    Right.  Those actions could be constitutional torts, too, which are an entirely different animal. Constitutional torts are those actions committed by government agents that violate a right guaranteed by the U.S. Constitution.  So in the example you just gave, arresting someone without probable cause would be a false arrest under state law, and would also violate the Fourth Amendment prohibition against unreasonable seizures.  Using force where it’s unwarranted would be a battery under state law, and would also be excessive force under the Fourth Amendment.  We have to look at these separately. Negligent and intentional torts are matters of state law, which are handled one way.  Constitutional torts involve violations of federally guaranteed rights, so they are handled in an entirely different way.

Miller:  I think that’s a really important distinction.  Officers can assert one kind of defense against state law claims for negligent or intentional torts, but have to assert a completely different defense against federal claims for constitutional torts.

Solari:    That’s right.  We’re only going to talk about suits for negligent and intentional torts today.  And, again, those are based on state law.  We’ll tackle constitutional torts, which involve federal law, in our next Podcast.

Miller:    OK.  To understand an officer’s defense against negligent and intentional tort suits, we have to cover a little bit of history first.  Until 1946, a person who was injured or had his property damaged by a federal employee couldn’t sue the United States government for those damages.  That’s because the federal government has sovereign immunity, which means it can’t be sued unless it specifically agrees to be sued.  So, an injured party’s only recourse was to sue the federal employee himself.  That wasn’t always very satisfying, since lots of federal employees have, you know, what should I say, shallow pockets.  The other way to get some money was for the injured party’s congressmen to introduce a special bill in Congress.  In 1946, the federal government agreed to waive part of its sovereign immunity so plaintiffs could sue it and recover money for their injuries or damaged property.

Solari:    It’s important to note that this was a huge win, both for injured parties and for federal employees.  Under the Federal Tort Claims Act, or the FTCA, federal employees are absolutely immune from suit for negligent or wrongful acts they commit while they’re acting within the scope of their employment.  That means they can do their jobs without having to constantly worry about being sued for negligent or intentional torts.  At the same time, the public now has some recourse in case they’re injured by a federal employee, they can sue Uncle Sam.

Miller:    So, a federal employee, federal employees are absolutely immune from suit for negligent and intentional torts they commit while acting within the scope of their duties.  The only way to recover for those torts is against the United States government.  Does that mean the government will always pay the damages?

Solari:    Not always.  The government has agreed to pay for the negligent torts of all its employees, as long as they’re within scope when the act occurred.  The government will also pay for certain intentional torts of its investigative and law enforcement officers.

Miller:    Who’s considered a law enforcement officer for purposes of the Federal Tort Claims Act?

Solari:    A law enforcement officer for purposes of the FTCA is anyone who can make arrests for violations of federal law, or seize evidence, or execute seizures.  If you qualify, then Uncle Sam will pay for intentional torts like assault, battery, false imprisonment, false arrest, malicious prosecution, and abuse of process if those torts were committed while within scope.  Limiting that intentional tort provision to law enforcement officers makes sense, if you think about it.  The federal government asks its law enforcement officers to arrest people, conduct searches, and seize evidence.  And as we know, that often involves doing things like grabbing people, knocking them down, hitting them with an ASP… whatever.  So you’d expect law enforcement officers to be doing things that look like intentional torts.  On the other hand, you know, a person who gives out checks at the social security office shouldn’t be grabbing anybody or knocking them down, or hitting them with sticks.  Uncle Sam just doesn’t ask them to do that, so the federal government’s not going to pay when they do.  

Miller:    So, let’s talk about how this works.  Let’s say you’re a federal law enforcement officer, and I’m someone you want to arrest.  When you attempt to arrest me, I resist because I don’t think your arrest is lawful.  You hit me with your baton during the course of the arrest, and well you break my leg.  Eventually, I file suit against you in state court for the intentional torts of false arrest and battery.  What’s going to happen?

Solari:    Well now first of all, the FTCA will only provide me immunity from that lawsuit if I was acting within the scope of my employment when I arrested you.  So, first, the director or the head of my agency will initially have to determine whether I was within scope.  That decision will be made primarily based on my federal enabling statute, which defines my agency’s authority and its jurisdiction, and will also be based on my agency’s policies.  That’s why it’s really important to know your agency policies, like for instance when you can and can not use the G-ride.  If you get in a wreck while picking up your dry cleaning in the G-car and your agency does not allow you to do that, there’s a pretty good chance your agency’s going to say you were outside the scope of your employment when you had the wreck.  That means the government can’t help you, so you’d be stuck with that lawsuit.  Anyway in this example, once the agency head makes a decision about whether I was within scope, then he’ll forward that determination to the U.S. Attorney, who will then pass it along to the United States Attorney General for certification.  

Miller:    And what happens if I don’t like the Attorney General’s decision about scope of employment?

Solari:    The “within scope” determination can be appealed to the U.S. District Court, where it will be reviewed based on the state law where the action occurred.

Miller:    What if you were not within the scope of employment when you arrested me?

Solari:    Then the FTCA can’t protect me, and I’m going to have to fight that lawsuit like any other defendant.  And if I lose, I’ll have to pay the damages.

Miller:    And if you were within the scope?

Solari:    Well that’s where the FTCA kicks in.  If I’m within scope, then I’ll be removed as the defendant, and the U.S. government will step in and take my place in that lawsuit.  My participation in that lawsuit is done.  And if you’re awarded damages, the United States will pay.

Miller:    But, of course, the United States government isn’t going to allow itself to be sued in state court.  The law will, the lawsuit’s going to be removed to the federal district court if the U.S. becomes the defendant.

Solari:    Absolutely.  Since the U.S. government created the Federal Torts Claims Act, it gets to make the rules.  One of the rules is that if Uncle Sam’s going to be the defendant, this case is going to be heard in federal district court.  Uncle Sam’s going to be sued on his own turf.  The other rules are that the case will be heard by a judge alone, no jury.  Also, the federal government will pay compensatory damages, which means the government will pay whatever the injury or damage is actually worth.  It won’t pay punitive damages, though, and the government won’t pay your attorney’s fees.

Miller:    Well, I guess it’s still better than suing you, since I know you really don’t have anything.

Solari:    Yeah, well unfortunately you’re right.  There’s another important rule to remember, too though.  A plaintiff who wants to bring a lawsuit against the government under the FTCA has to jump through certain hoops before he can get that lawsuit all the way into a courtroom.

Miller:    Right.  I have to present the claim to your agency first, to give the agency a chance to either settle the claim or deny responsibility.

Solari:    Exactly.  And you only have two years from the date of the alleged tort to do that.  If you wait too long, you’ve lost your chance.

Miller:    You talked earlier about the federal Good Samaritan Act.  How does that play into all of this?

Solari:    Well as I mentioned before, it doesn’t give federal officers any additional authority to act.  It’s important to remember that.  All it does is broaden the scope of employment to cover certain actions that might not technically be allowed under the officer’s federal enabling statute.  Let me back up and explain enabling statutes.  Each federal agency is created by a federal statute and that’s what I keep referring to as “enabling statutes.”  The enabling statutes define the authority and the jurisdiction of each agency and its employees.  Some agencies can only investigate certain types of federal crimes.  So, when I was an NCIS agent, for instance, I could only investigate crimes that had some connection to the Department of the Navy.  Other agencies are limited not by the types of crimes they can investigate but by geographical boundaries, like the United States Park Service.  There may be a time when a federal officer or agent wants to help, but is technically not granted that authority by his enabling statute or by state law.  That ordinarily means that the federal officer is exposing himself to some personal liability if he acts.  The Good Samaritan Act is an attempt to broaden the officer’s scope of employment to protect him when he does one of the following things: protects an individual in his presence from a crime of violence, provides immediate assistance to someone who has suffered or who is threatened with bodily harm, or prevents the escape of someone the officer reasonably believes has committed a crime of violence in his presence.

Miller:    What about representation?  That would be a big concern of mine.  If the officer ends up being immune from the lawsuit under the FTCA, he’s still going to need a lawyer for the beginning stages of litigation.

Solari:    Sure and that can cost you a lot just in itself.  Whether the Department of Justice provides the officer with legal counsel is just really up to DOJ.  If the officer was within scope, within the scope of his employment when the alleged negligent or intentional tort occurred, it’s likely that DOJ will provide the officer with an attorney.  There are some instances though in which they won’t, even if the officer was within scope.  They might refuse to represent the officer for instance if the case is really just incredibly minor, or if the officer doesn’t provide DOJ with enough notice to prepare for the case.  They might also refuse if more than one officer was involved in the action and the officers are telling different stories, or if one or more of the officers lied or were uncooperative during the investigation.

Miller:    Let me see if I can kind of sum this up.  Under the Federal Tort Claims Act, federal employees have absolute immunity for negligent and intentional torts they commit while within the scope of their employment.  A negligent tort happens when an employee fails to exercise the appropriate level of care and thereby accidentally causes damage to the plaintiff.  An intentional tort happens when an employee intentionally, but wrongfully, commits an act that causes damages to the plaintiff.  Both negligent and intentional torts are based on state law.

Solari:    That’s exactly right.  And the Federal Tort Claims Act, the FTCA, says that as long as the employee was within the scope of employment when the alleged negligent or intentional tort happened, they get to step out of that lawsuit, and the U.S. government steps in.  The U.S. will then pay damages for negligent torts committed by any of its federal employees, within scope obviously, and will pay damages for intentional torts committed by its investigative and law enforcement officers.  Again, and I can’t stress this enough, that’s only when they’re within scope.  If the employee’s not within scope, then that employee remains the defendant and is going to have to pay damages if any are awarded.

Miller:    In all of this, it’s critically important that federal officers know what kind of authority they’re granted by both federal and state law, and what their agency policies permit.  

Solari:    Absolutely.  Well, that covers negligent and intentional torts and the Federal Tort Claims Act.  We’ll talk more in our next Podcast about constitutional torts, and we’ll also discuss how officers can defend against those lawsuits.  In the meantime, if you’d like to listen to some of our other Podcasts, you can find them online at www.fletc.gov/legal/podcasts.  Thanks for being with us today Tim.

Miller:    Yes ma’am, thank you.