The Potential Civil Liability of Law Enforcement Officers and Agencies

JurisdictionKansas,United States
CitationVol. 67 No. 09 Pg. 14
Publication year1998
Kansas Bar Journals
Volume 67.


Journal of the Kansas Bar Association
September, 1998


Stephen R. McAllister [FN1]

Peyton H. Robinson [FN2]

Copyright (c) 1998 by the Kansas Bar Association; Stephen R. McAllister, Peyton H. Robinson

I. Introduction

Society needs law enforcement officers. In a complicated modern society law enforcement officers are necessary to protect citizens and enforce the criminal laws, yet society demands that such officers not break those laws themselves. There is some uneasiness in giving government officials, especially armed officials, the power to stop and question citizens, to investigate and arrest and to make sometimes critical decisions about the lives of citizens. [FN3] Yet without such powers, law enforcement officers could not provide effective protection to the citizenry or the level of security that a mature society expects and demands.

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To guide and restrain the use of police power, the state legislatures and Congress have enacted several specific statutory provisions governing the conduct of law enforcement officers. For example, there are statutory limits on when the police may arrest a person, [FN4] when they may search without a warrant [FN5] and when they may tap a phone. [FN6] In addition, the state and federal courts have interpreted the laws and the Constitution in ways directly affecting law enforcement officers' daily contacts with citizens.

But these general regulatory controls are not the only legal constraints on the conduct of law enforcement officers. The Kansas Tort Claims Act (KTCA), [FN7] for example, purports to make governmental liability the rule, rather than the exception. Most states have similar statutes. The KTCA provides potentially broad tort liability for law enforcement officers, and for the state and local agencies that employ them, subject to some important exceptions and limitations. As a matter of federal law, police officers have been subject to potential civil liability for violations of federal rights since 1961, when the Supreme Court of the United States first broadly interpreted 42 U.S.C. § 1983. [FN8]

This article examines the potential civil liability of state and local law enforcement officers and agencies arising from the use, and sometimes misuse, of official power in connection with law enforcement duties. Although the article focuses on Kansas law and federal law, the same fundamental principles apply in most, if not all, states. The primary purpose of the article is to outline the essential law and to highlight important legal and practical considerations in this context for all involved, whether an aggrieved citizen, a law enforcement officer accused of misconduct, an attorney representing a party or a judge presiding over such a case.

Moreover, understanding the potential bases for civil liability in the use and misuse of police power is critical not only to the citizens and officers involved but also to state and municipal governments and agencies. The potential cost of law enforcement officers' civil liability can be substantial for the agencies and governments that employ them. The costs take many forms, including liability insurance, training and performance monitoring programs, litigation expenses and, in some cases, liability judgments. Ultimately, many of the costs may be passed on to taxpayers and communities. On the other hand, the reason the police have such potential liabilities is that the unrestrained exercise of law enforcement power is a cost that society is not willing to bear. In any event, another purpose of this article is a proactive one: to suggest areas or situations of particular concern in which certain preventive steps or measures may be taken to limit the potential for violations of citizens' rights and the corresponding potential civil liability for law enforcement officers and agencies.

Part II of this article provides an overview of the potential civil liability of law enforcement officers and agencies. In particular, Part II sets forth the basic legal principles underlying the KTCA, as applied to law enforcement officers and agencies, and discusses some of the more important KTCA/law enforcement cases the Kansas courts have decided. Part II also reviews the basic § 1983 principles that apply to suits against law enforcement officers and municipalities for violations of citizens' federal rights. Part II importantly addresses some apparent confusion in the Kansas courts and the Kansas bar about the relationship between state and federal civil remedies in this context. Lastly, Part II briefly discusses the basis for the potential civil liability of federal law enforcement officials.

Part III offers a general assessment of the nature and scope of law enforcement officers' liabilities. Part III concludes the article with a list of several specific problem areas that law enforcement officers and agencies should strive to avoid and that aggrieved citizens should consider in deciding whether to pursue a civil lawsuit against such officials and entities.


A. State Law - The Kansas Tort Claims Act, K.S.A. § 75-6101 et seq. [FN9]

1. General principles

The common law principle of "the King can do no wrong," [FN10] relied upon by Kansas and other states to establish governmental immunity from tort liability, was partially waived in the Kansas Tort Claims Act. Since July 1, 1979, every "governmental entity" [FN11] in Kansas generally may be

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held liable for the acts or omissions of its employees. [FN12] The KTCA applies to state institutions and agencies, as well as to "municipalities," [FN13] which are specifically prohibited from using their Home Rule powers to exempt themselves from the KTCA. [FN14] The statute, however, is far from a complete relinquishment of sovereign immunity from suit. Even though the KTCA made liability the rule and immunity the exception, governmental tort liability often remains difficult to establish because of the statute's numerous exceptions, procedural requirements and limitations on remedies.

The individual employees of a governmental entity are also amenable to suit under the KTCA. "Employee" includes individuals who are elected, appointed, or acting on behalf of a governmental entity in any official capacity, whether paid or volunteer, including former employees if the alleged violation occurred during their former employment. [FN15] These definitions are sufficiently broad to include any law enforcement officer within the state, whether full-time city police officer or volunteer reserve county deputy.

The KTCA does not create a new cause of action beyond what is already available at common law, [FN16] and there is no greater liability under the statute than a private person would have under Kansas law. [FN17] Recovery under the statute still requires the plaintiff to allege a recognized tort and to prove the essential elements involved. [FN18] In addition, in order to hold a government entity liable for the tort of its employee, such as a law enforcement officer, the employee must have been acting within the scope of employment. [FN19]

Although the general purpose of the KTCA is to make government employees and entities liable in tort in the same manner and to the same extent as private people and entities, [FN20] the KTCA contains some significant limitations on government tort liability. For instance, the maximum liability of a governmental entity under the KTCA is $500,000 per incident or occurrence, unless the entity has liability insurance in excess of that amount. [FN21] And in no circumstances is a governmental entity liable for punitive damages or prejudgment interest. [FN22] Government employees, however, can be held liable for punitive damages, but only if they are found to have acted fraudulently or with malicious intent. [FN23]

When a law enforcement officer has acted within the scope of employment and been sued under the KTCA, generally the employing entity must defend the officer and indemnify the officer in the event compensatory damages are awarded, so long as the officer cooperates in good faith in the defense of the claim. [FN24] If the officer's act or omission was outside the scope of employment, the government entity is not required to defend the officer. [FN25] Other situations that allow the government to refuse to provide for the officer's defense include those when the officer acted with fraudulent or malicious intent, [FN26] when the entity's defense of the claim may conflict with the officer's interests [FN27] and when an officer has failed to comply with statutory requirements in making a request for assistance in defending the action. [FN28]

Thus, a government entity generally will be liable for the torts of its law enforcement officers on a respondeat superior basis under the KTCA, [FN29] although perhaps not for all damages that may be awarded. Nor will a governmental entity necessarily be liable for the intentional misconduct of its police officers.

2. Duty

A tort is a breach of a duty imposed by law. [FN30] The general duties of a law enforcement officer are provided by statute and obligate the officer to maintain public order and to

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make arrests for violation of the laws of the state or the ordinances of any municipality. [FN31] The statutes provide the boundaries of the police function [FN32] but do not explain where tort liability may arise.

The courts have provided substance to the tort liabilities of law enforcement officers for KTCA purposes. Since a law enforcement officer may be held liable for damages under circumstances in which a private individual would be held liable, the Kansas courts have relied...

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