Sovereign Immunity’s Cop Suit, Going Nowhere and Getting Sanctioned.
Gone are the days of the Kings can do no wrong. Our government has waived sovereign immunity, a shield against citizen law suits. Government wrongdoing can be addressed in court, but some protections against suit are alive and well, and can thwart the best law suit and cause sanctions to be awarded.
One Must Get Past The Formalities To File a Suit Against the Government.Our society does not permit a government authority to get away with tortious conduct, and as a result governments have waived sovereign immunity. To sue some municipalities, for example, one must file a notice of claim in the correct government office. In this instance, an officer can fake acceptance and assure the process server the agent has been served, but if that agent is in the wrong office, the suit dies for lack of prior notice of claim.
A Scenario That Involves Tortious Conduct by Police.Governments have a similar trick that immunizes police inaction or negligence. This immunity can be triggered in many ways this legal guide aims to reveal. The underlying court action involves cops. A cell phone owner is being robbed and he and his family call police to the store where the robbery is taking place. Police arrive and start shooting indiscriminately. One cop dies and the store owner is shot and killed by the robber. The robber is arrested and charged with murder.
The Family Sues The Municipality.The family of the store owner sue the city for the cop’s failure to protect the store owner. In most states, cops are immune from suit on the legal notion that no cop protects any particular person, but he rather protects the public at large. The exception is if the cop formed a ‘special relationship’ with the store owner.
Suing Police For Failing to Protect A Party Requires A Showing Of A Special Relationship.The case law reveals that a special relationship is formed when these elements are proven by a preponderance of the evidence:
1. Assumption by the municipality, through promise or action, of an affirmative duty to act on behalf of the injured party.
2. Second, it must be shown that the municipality's agents knew "inaction could lead to harm."
3. Direct contact: A 14 second phone call was a sufficient direct contact. DeLong v. County of Erie, 89 A.D.2d 376 (4th Dept. 1982).
4. Justifiable reliance: To establish the individual's justifiable reliance, the plaintiff must show that the municipality's actions lulled the individual into a false sense of security and induced him to either relax his own vigilance or forego other avenues of protection, thereby placing the individual in a worse position than he would have been had the municipality never assumed the duty.
What Do Police Do To Thwart Liability CLaims?Here is how police act to avoid the formation of a special relationship to shield the municipality from suit.
1. Police never show by word or deed that they are protecting a particular person. They may await the robber to shoot the store owner first, or they may await the robber’s actions against police before shooting.
2. Police may remain away from the store owner not knowing where he is, and at a distance confront the robber.
3. Police may avoid direct contact. In the Marjorie Stoneman Douglas School shooting, police had a policy to avoid direct contact with students while the shooter was killing students.
4. Police may avoid giving the impression they are protecting the store owner.
Courts Are Key To Protect The Municiplaity From Suit.Courts will act to thwart a special relationship by dismissing suits after finding that the special relationship does not exist. Also, the judge may say that the stream of activity from the phone call to police can be severed from their arrival at the site. This means an assumption by the cops can be too slight to create an affirmative duty to protect the store owner, and that direct contact was too slight. The government pays the judge, and the judge does not want to punish the entity that pays her salary.
Municpal Leaders Act To Restore Sovereign Immunity.Municipal leaders say through the media that they do not want lawsuits to lead to awards. This motivates the cops and the courts to set up litigation scenarios that prevent a plaintiff’s success. There arises a coordinated team. Going further, a judge can dismiss a suit and award costs and other sanctions. This causes lawyers to want to avoid such cases. In an environment of total immunity, cops can engage in tortious conduct all they way want with approval by the courts that come in the form of dismissals.
Another feature of this approach to protecting the sovereign is that cops who act to protect cause lawsuits to proceed while cops who do nothing are immunized from suit. Thus the wrong behavior is rewarded. From the point of view of the citizen, cops do not come to help and if death results, nothing happens to the government.
Vote Correctly.If you are having trouble suing a municipality, that is by design. If you cannot find a lawyer to represent you, now you know why. So you want to change this? Get out and vote because there is no other way to fix this broken system.