Police staffing issues are not new, neither are complaints against judges, district attorneys, or other criminal justice system functionaries accused of being soft on crime or remiss in their duties. However, a few recent lawsuits by family members of law enforcement officers killed in the line of duty have sought to hold officials liable for their discretionary decisions. The problem is that the law is not on their side.
The fireman’s rule: A barrier to recovery
A common law rule these lawsuits must overcome is the professional rescuer’s doctrine, also known as the fireman’s rule. This rule bars public safety employees from suing for damages incurred while performing their duties. A public safety officer is held to have assumed the risk of performing their duties and is not entitled to damages for the resulting injury. This is categorized as a “dependent risk” inherent in the nature of the assignment or duty performed.
An exception potentially exists for either a risk so extraordinary a public safety officer could not be expected to have assumed it, or the alleged defendant’s conduct was so outrageous and blameworthy as not to provide a shield from liability. But a criminal defendant or another individual upon whom an officer seeks to impute liability is often judgment-proof due to a lack of financial resources. Recently though, a local Illinois police officer shot by a murder suspect in 2023 was awarded $3 million from the suspect’s estate. The suspect owned several properties that the estate was trying to sell, and the officer’s lawyer filed a claim. This outcome is rare.
Otherwise, recovery for injury is only allowed if the cause was independent of the risk assumed. For instance, in states where the fireman’s rule is in place, exceptions exist if a defendant’s conduct was willful, wanton, or intentional; injury results from a willful trap; or if a defendant was aware of a hidden danger and failed to warn. Even though the fireman’s rule, or public rescuer doctrine, is considered outdated and several states have statutorily abolished it, other states have retained the rule.
Discretionary governmental immunity: The second hurdle
Another hurdle to mounting a successful claim is the concept of discretionary governmental immunity. This rule prevents courts from passing judgment on basic policy decisions made by coordinate branches of government. It is a matter of judicial restraint of a court’s review authority when the executive or legislative branch of government performs a discretionary act entirely within the purview of their designated powers.
An example of a court applying this rule occurred in the wrongful death case of Estate of McCartney v. Pierce County, 22 Wn. App. 2d 665 (2022), wherein the estate of Deputy Sheriff Daniel McCartney, who was fatally shot responding to a call, sought to hold the county liable for inadequate staffing. The lower trial court dismissed the pleading on motion and the estate appealed. In the complaint, Deputy McCartney’s family alleged “that the County had a duty to provide McCartney with a safe workplace, proper supervision, adequate training, and sufficient support.” Their filed complaint also stated that the County was negligent for “not hiring sufficient deputies” and “negligently created unsafe working conditions through understaffing.”
The Washington Court of Appeals, upon review of the lower court dismissal, outlined the five-part test established by the state’s Supreme Court for determining if discretionary governmental immunity applies:
- Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
- Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
- Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
- Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
- And to be entitled to immunity the defendant must show that the policy decision was made after consciously balancing risks and advantages in a “considered decision.”
Weighing each of these factors the Court of Appeals upheld the lower court’s dismissal.
Qualified immunity for prosecutors and high officials
In a different context, the lawsuit of a Philadelphia police officer indicted by District Attorney Larry Krasner for the fatal on-duty shooting of a criminal suspect was similarly dismissed.
In Pownall v. Krasner, 675 F. Supp. 3d 517 (E.D. Pa., 2023), Ryan Pownall sued based on the faulty grand jury presentation of the district attorney’s office that led to his indictment. The memorandum opinion of District Judge Gerald McHugh found that the defendants had absolute immunity as prosecutors, that other acts were covered by qualified immunity, and that the doctrine of “high official governmental immunity” applied. Under an absolute immunity claim, a reviewing court looks to the “functional nature of the activities rather than the prosecutor’s status.” Imbler v. Pachtman, 424 U.S. 409 (1976) The prosecutor bears the burden of showing that immunity is justified for the function performed. Burns v. Reed, 500 U.S. 478 (1991)
Judge McHugh found that the prosecutors had absolute immunity for their “judicial advocacy in prosecuting Pownall.” The defendants’ qualified immunity protection applied because Pownall failed to state a violation of a clearly established constitutional right. Lastly, the defendants were entitled to protection under the common law claim that “high public officials are immune from suits seeking damages for actions taken or statements made in the course of their official duties.” Durham v. McElynn, 565 Pa. 164 (2001) Prosecutors performing their official duties are defined under Pennsylvania case law as “high officials.”
The uphill battle for plaintiffs in law enforcement lawsuits
While the McCartney and Pownall cases provide examples of the difficulties plaintiffs face in bringing these civil actions, state laws and underlying facts in each case vary. Plaintiff police officers should consult an attorney experienced in litigating against government entities and officials. However, some form of governmental immunity exists in all states and under federal case law. This erects a nearly insurmountable wall to a successful claim.
Presently, there are a few cases pending across the country, filed by law enforcement officers or their estates, based on assorted claims and legal theories wherein government officials are accused of acting in a manner injurious to the officer. Aside from the proof required to show the proximate causation between the official act or decision and the resulting harm, these plaintiffs must first get beyond the government immunity claims. If any of these pending cases happen to be successful, you’ll read it here.
