Examining the Liability Factors of Sudden Wrongful Deaths in Police Custody

• Date: 01 December 1998
• Published date: 01 December 1998
• DOI: 10.1177/109861119800100404
• Subject Matter: Articles

EXAMINING THE LIABILITY FACTORS OF SUDDEN
WRONGFUL DEATHS IN POLICE CUSTODY
DARRELL L. ROSS
East Carolina University
Use-of-force encounters between the police and violent arrestees have in-
creased over the past few years. Annually in a small number of these ar-
rests, the individual suddenly and unexpectedly dies in police custody after
a period of intense struggle—frequently in restraints. Such wrongful deaths
in custody generate civil lawsuits. This discussion identifies the liability
factors associated with these deaths by examining cases filed under tort
theories of negligence in state courts and claims filed in federal court un-
der provision of Title 42 United States Code Section 1983. The analysis
addresses standards of using force, medical care and training issues. Rec-
ommendations for police administrators are also presented.
Arrest incidents where police utilized nonlethal force measures that resulted
in severe injuries or deaths have initiated much concern with the public,
media, judiciary and researchers regarding the nature of police control mea-
sures and
equipment. Use-of-force incidents have precipitated numerous civil
litigation actions against the police for allegations of excessive force. In re-
sponse, the United States Supreme Court has established guidelines for po-
lice decision-making and standards of review for considering allegations of
excessive force (Tennessee v. Garner 1985; Graham v. Conner 1989). Con-
cerns regarding the nature and trends of civil litigation for assertions of ex-
cessive force have prompted limited research. LRP Publications (1992)
researched police shootings and found plaintiffs prevailed in 63 percent of
cases; the average award was $1,327,927. Kappeler, Kappeler and del Carmen
(1993) conducted a content analysis of published Section 1983 claims against
the police from 1978 to 1994 (n = 2,153) and identified the 20 most preva-
lent topics of litigation against the police. They reported excessive force claims
ranked sixth out of 20 categories where plaintiffs are likely to prevail (56%)
in a Section 1983 lawsuit. They also found the average award in excessive
force claims amounted to $178,878.
POLICE QUARTERLY, VOL. I, NO. 4 1998
@1998 Police Executive Research Forum

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In the last 20 years, civil litigation and incidents involving police use-
of-force measures have become fertile ground for scholarly research. Past
researchers have primarily focused their efforts on deadly force and firearm
issues because of their high profile, potential for liability and more complete
record-keeping, which makes data collection less problematic (Alpert 1989;
Binder and Fridell 1983; Binder and Scharf 1980; Blumberg 1982; Chevigny
1969; Fridell 1989; Fyfe 1987, 1988; Geller 1985; Horvath 1987; Jacobs
and Britt 1979; Lester 1984; Matulia 1982; Milton, Lardner and Albrecht
1997; Pate and Fridell 1993; Reiss 1971; Schultz and Service 1981; Waegel
1984). In comparison, less research has been conducted into the nature and
extent of less-than-lethal force used by police. Most empirical research on
less-than-lethal force by police has been based on data collected through the
observation of officers on patrol (Reiss 1971; Friedrich 1980; Sykes and
Brent 1983; Bayley and Garofalo 1989). These studies indicate that officers’
use of force is infrequent in citizen and police encounters and generally a
result of citizens’ antagonistic behavior. Other studies have reviewed police
use-of-force reports (Croft 1985; Croft and Austin 1987; Garner et al. 1996;
Greenfeld et al. 1997; Greenleaf and Lanza-Kaduce 1995; McLaughlin 1992).
These studies indicate police use of force is a complex issue, frequently re-
volving around the changing situational dynamics of the arrest environment,
and is rare given the number of citizen and police contacts and the number
of annual arrests. It is also recognized that continuing research on the situ-
ational dynamics of police-citizen encounters is needed to improve our un-
derstanding of police use of force (Matstrofski and Parks 1990).
Police are increasingly taking custody of citizens who are highly intoxi-
cated by alcohol or drugs and/or exhibit symptoms of a mental disorder.
When these citizens violently resist arrest, police must use higher levels of
force and/or less-than-lethal force equipment. A particular problem emerg-
ing from these confrontations is the small number of arrestees who suddenly
die in police custody each year. Individuals who are violent toward them-
selves, others or officers must be restrained; in a majority of arrests, the per-
son is physically controlled without sustaining injuries. In some cases,
however, arrestees are maximally restrained in the &dquo;hog-tied&dquo; position (hands
and legs restrained and connected together, with the legs bent back toward
the hips and the arrestee on his or her stomach). Within minutes, officers
may
notice the once-combative person is now unresponsive. Emergency pro-
cedures and/or medical assistance fail to resuscitate the individual, who is
dead a few minutes or hours after the arrest.
This article explores the potential civil liability issues commonly associ-
ated with sudden/wrongful deaths in police custody. Liability issues involv-
ing standards of care in state courts are examined, as well as the standards for

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use of force, restraints, medical care and training issues under Title 42 United
States Code Section 1983. Recommendations for police administrators and
officers are also presented.
Sudden deaths in police custody after a use-of-force confrontation are
emerging as a critical area in police civil litigation. While many of these
lawsuits are settled out of court, those decided by trial yield legal precedents
worthy of concern for police officers and administrators. Sudden custodial
deaths normally produce a civil lawsuit by the estate attempting to demon-
strate that the officers and governmental entity should be held responsible
for a wrongful death. Police must recognize their legal responsibility and the
potential claims that may be filed against them. While there is no absolute
protection against civil lawsuits, a municipality and its police can defend
their actions by knowing the legal issues involved and by developing proac-
tive measures to reduce the frequency of litigation.
Methodology
Cases from the Westlaw database meeting the following definition were iden-
tified for analysis: the unintentional death of an arrestee who exhibited vio-
lent and bizarre behaviors where physical force measures or equipment were
used to subdue the person by the police. Criteria for further case identifica-
tion and analysis included the following: the arrestee exhibited violent be-
haviors associated with the influence of chemical substance or mental illness;
the police employed use-of-force measures and restraints during the con-
frontation ; and the arrestee died on scene, during transport, at a detention
facility or in the hospital. A descriptive case analysis approach was employed
by identifying 37 cases from across the United States and ranging from 1983
to 1998 that meet the established criteria. The analysis includes both state
court and federal court Section 1983 litigation. The analysis is narrow in
scope and examines trends of court decisions regarding issues of force and
restraint, medical care and training relative to wrongful in-custody deaths.
The research excludes incidents involving other deaths in custody, such as
prisoner suicides, police beatings, deadly force shootings, &dquo;suicide by cop,&dquo;
deaths due to natural causes and vehicle pursuits resulting in a suspect’s death.
Theories of Wrongful Death
A
lawsuit filed in a wrongful custodial death alleges that the police depart-
ment as a whole was intentionally negligent, grossly negligent and deliber-
ately indifferent to the needs of the deceased. The lawsuit generally asserts
that the department’s customs, policies and procedures (or lack thereof) were
the &dquo;proximate cause&dquo; of the death. The plaintiff attempts to show the de-
partment ignores industry standards, historically overlooks problems in the

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agency and typically fails to correct constitutional deficiencies.
The claim may also assert the department fails to keep abreast of changes
in the profession and that it takes a death or a lawsuit before the agency
makes necessary changes. Generally the following allegations are made against
the police in a sudden wrongful death suit (the charges are not mutually
exclusive):
~
the arresting officers used excessive force;
~
officers assaulted and battered the deceased;
~
officers’ use of restraints contributed to the death;
~
officers were grossly or deliberately indifferent to the medical and/
or psychological needs of the deceased;
~
officers failed to assess/monitor the deceased’s medical condition
and/or provide or summon medical assistance for the deceased;
~
officers failed to transport the deceased to the nearest hospital or
summon
medical assistance at the arrest scene;
~
officers failed to follow departmental policy;
~
the deceased was transported in a police vehicle in a maximally
restrained position, which contributed to his death;
~
officers violated the deceased’s constitutional rights;
~
officers acted outside the scope of their authority; and
~
officers conspired to injure the deceased or cause his or her death.
The claim may also assert the agency failed to
~
provide officers with policies that would direct them in responding-
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