Vicarious Liability for Police Supervisors - Research Paper Example

? of the of the of the Vicarious Liability for Police Supervisors Vicarious liability is a legal concept, which makes an individual liable for the negligent actions of another person. Several events can be cited that are examples of this doctrine. For instance, parents may be held liable for the injury caused by one of their children. Similarly, employers can be held vicariously liable for the negligent or harmful acts of their employees (Giles and Phillips 17). The doctrine of vicarious liability is especially significant with regard to police officials. The law has with considerable forethought, extended the scope of this doctrine to encompass the activities of the police. Thus, senior police officials are under a duty to supervise the activities of their subordinate officers. They are directly liable to the public for the acts of their subordinates (Del Carmen 107). This rule applies even when they authorize, participate, or ratify such acts. These senior officials are also liable, when the act had been committed in their presence and it had been possible for them to prevent it, but they had preferred to remain indifferent. Vicarious liability connotes indirect responsibility for the negligent actions of subordinates. Such conduct could be the outcome of negligence in hiring, training, assignment, supervision, entrustment, or retention (Del Carmen 107). The State laws may render police supervisors liable for the actions affecting subordinates. In general, direct liability tends to be related to the reasons for which employees could be reassigned, suspended, demoted, or dismissed from service. The provisions of Title 42 Section 1983 are generally invoked, in order to render a police supervisor directly liable to the public (Del Carmen 107). Although, a few of the circuit courts of appeal dismiss vicarious liability under Section 1983, it has been observed that on several occasions these courts have applied it on specific State law or on the hiring, training, or supervision of subordinates. The statutory prohibitions against discrimination can include supervisor liability to subordinates under Federal law. This makes it incumbent upon police supervisors to become familiar with the legal limits of their employment (Del Carmen 107). In addition, these police supervisors have to enhance their awareness regarding the actions and competencies of their subordinates. As such, police supervisors should recommence the fundamental tasks of continually supervising, teaching, updating, and controlling their subordinates. This will prevent to a major extent, the various civil rights actions that tend to be undertaken on a regular basis against the actions of the police. In the contemporary world, there has been a tremendous increase and development in technologies related to computers, the Internet and communications (Grossman). Consequently, the cost of providing refresher courses and documentation on a continual basis should not exceed the cost of a legal action for failure of the municipality to provide proper training and adequate supervision, with regard to its law enforcement officers (Grossman). In Suders v Easton, the plaintiff was a police communications operator, who resigned from her post without officially informing the police department of her having been subjected to sexual harassment. Subsequently, she sued the police department for sexual harassment in violation of Title VII. Her contention was that her resignation was tantamount to a constructive discharge (Bass 195). The Third Circuit ruled that a constructive discharge on account of sexual harassment by a supervisor was a tangible employment action. This ruling effectively precluded the police department’s affirmative defense to vicarious liability. Such an affirmative defense can be resorted to when the sexual harassment does not lead to a tangible employment action (Bass 195). However, this important ruling was overturned by the Supreme Court in Pennsylvania State Police v Suders. The reason provided by the Supreme Court for this judgment was that a constructive discharge did not constitute a tangible employment action. As a consequence, the defense was provided to the police department. If the ruling of the Third Circuit had been confirmed, then there would have been a more effective remedy for sexual harassment (Bass 195). As such, a plaintiff can have a claim for constructive discharge, if she tenders her resignation from employment, due to sexual harassment. However, in such cases, a reasonable employee should have concluded that the conditions were akin to a constructive discharge. In such situations, the employee can claim pay with retrospective effect and other equitable remedies. On the other hand, sexual harassment claims that are devoid of constructive discharge will receive limited punitive and compensatory damages (Bass 195). Burlington Industries, Inc v Ellerth and Faragher v City of Boca Raton are some of the best examples of claims that are devoid of the constructive discharge component. In these cases, the plaintiffs claimed solely on the grounds of sexual harassment, although they had resigned from their jobs, subsequent to the harassment they had undergone (Bass 196). In addition, the Supreme Court of the United States established two categories of hostile work environment sexual harassment, with regard to such cases. The Court used this test to determine the vicarious liability of the employer. Under this test, if the alleged harassment had crystallized in a tangible employment action, such as hiring or resigning from the job, then the employer was rendered vicariously liable (Bass 196). On the other hand, when the harassment did not culminate in a tangible employment action, then the employer could resort to a defense to liability. This defense requires the employer to establish that he had exercised reasonable care to prevent and promptly rectify conduct that would lead to sexual harassment. In addition, the employer has to prove that the concerned employee had been unreasonable in failing to take advantage of the corrective or preventative measures made available by the employer (Bass 196). For example, in Suders case, the plaintiff alleged that three male supervisors of the police department had sexually harassed her. She alleged that they had subjected her to obscene gestures and sexually explicit comments. Her supervisors argued that she had repeatedly failed to pass the mandatory computer skills test. Suders found her answer sheets hidden in a drawer in the women’s locker room (Bass 197). This established that her supervisors did not send them to the appropriate department. Instead of conducting an investigation into this crime, the supervisors accused Suders of theft, and they handcuffed, photographed, and questioned her. Suders had approached the Equal Employment Opportunity Office of the Pennsylvania State Police. However, the EEO was obviously in favor of the police department. This compelled Suders to refrain from informing her superiors in the police department. Finally, she resigned from her employment (Bass 197). Moreover, in her claim against the police department, Suders invoked the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, and the Pennsylvania Human Relations Act. She sued the three supervisors and the State Police to claim damages for sexual harassment. The district court found that Suders had submitted enough evidence to prove her allegations to the satisfaction of her Title VII claims of hostile work environment and constructive discharge (Bass 197). However, the court also found that Suders had failed to make use of several remedial courses, such as the grievance procedures made available by the department. This caused the court to refrain from addressing the constructive discharge claim. The Third Circuit on appeal set aside the ruling of the district court regarding the Title VII claim. The Court also held that the State Police could not resort to the Ellerth and Faragher defense. This was because a constructive discharge constitutes a tangible employment action. Furthermore, with regard to tangible employment action, the affirmative defense is inapplicable (Bass 197). Moreover, in Mack v Otis Elevator, the plaintiff was an elevator mechanic’s helper for the defendant. She was assigned to assist six mechanics at the Metropolitan Life building in New York City. In accordance with the collective bargaining agreement arrived at between the union of the elevator constructors and Otis, a mechanic in charge had to be designated from among the mechanics present, whenever there were in excess of five employees on a job (Mandell 523). This mechanic in charge was responsible for allotting the work that had been assigned by the management, checking the quality of the work, and monitoring workplace safety. Mack claimed that from the very first day of her employment, the mechanic in charge, Connolly had made repeated sexual comments, frequently changed his clothes in her presence, and described his sexual escapades. On one occasion, he had forcibly seated Mack on his lap and attempted to molest her. Mack filed a suit under Title VII, alleging a hostile work environment, retaliation, and constructive damage (Mandell 523). The district court granted the defendants’ summary judgment motion with regard to all the claims made by the plaintiff. On appeal, the Second Circuit upheld the judgment of the district court, with the exception of the hostile environment claim by the plaintiff. This claim was vacated and the case remanded. While doing so, the Second Circuit determined that a reasonable jury would conclude that the workplace, in this instance, was replete with intimidation that was directed at females. It also concluded that the intimidation was sufficiently severe to alter the plaintiff’s work environment (Mandell 523). Thereafter, the Second Circuit examined whether the employer could be imputed for the workplace conduct that had generated the hostile environment. In order to decide whether Otis was to be made liable, the Second Circuit referred to the ruling of the Supreme Court in Burlington Industries, Inc v Ellerth and Faragher v City of Boca Raton. These rulings provide the basis for evaluating vicarious liability, with regard to a hostile work environment, under Title VII (Mandell 524). Furthermore, Ellerth and Faragher had demonstrated that an employer could be made vicariously liable for a work environment that had been rendered hostile by the supervisory staff. Although, the Court failed to define the criteria for classifying employees as supervisors, it declared that a supervisor was an employee with immediate or successively higher authority over the employee. This was rectified in the ruling in Parkins v Civil Constructors of Illinois, Inc, wherein the Seventh Circuit defined a supervisor as an employee empowered to hire, fire, demote, promote, transfer, or discipline an employee (Mandell 524). The Parkins test had been adopted by the circuit and district courts, with the exception of the Second Circuit. The latter concentrated on whether the authority provided by the employer to the employee enabled or materially improved the capacity of the latter to generate a hostile work environment for his subordinates. This test of the Second Circuit was based on enforcement guidelines of the Equal Employment Opportunity Commission and the rulings of the courts that provided a wider definition of the term supervisor. In Mack, the depraved Connolly had been empowered to direct the work activities of the plaintiff and he was the senior employee on site (Mandell 525). Consequently, the court held that Connolly was the plaintiff’s supervisor, and that Otis was vicariously liable for his attempt to molest Mack. As such, police organizations have witnessed considerable change in management practices. This has been the outcome of increased professionalism in policing, and the attribution of greater significance to it. Consequently, there has been a marked transition in the role of police supervisors, which has commenced to acquiesce, to the requirements of community policing. Prior to the community – policing era, field supervisors were given to utilizing a traditional and rigid form of supervision (Buker 62). Furthermore, this traditional model required police supervisors to scrutinize the activities of subordinate officers and to implement the departmental rules and regulations strictly. Moreover, during those times, the police organizations had a quasi – military and bureaucratic nature. This required the supervisors to convey information to subordinates as well as to their superior officers (Buker 62). All this has changed in the contemporary milieu. At present, law enforcement is characterized by its community policing approach. Law officers have to be permitted considerable discretion and flexibility in their fieldwork, as this is indispensable for effective law enforcement. In addition, there has to be a democratization of the hierarchical personnel systems (Buker 62). As far as community policing is concerned, the role of the police supervisor has to be that of a team leader, with respect to the subordinate officers. At the same time, it has to be ensured that the established police duties are not ignored or discharged in a negligent manner. The principal objective of police supervision is to improve the skills of subordinates. This has to be achieved by developing their ability to solve problems, assisting them to arrive at sound professional judgments, and improving their capacity for creative action and thought (Buker 62). Furthermore, police supervisors have to express the implications of policing that is community oriented, in the context of daily practice. Moreover, they have to facilitate improvement in the community relations skills of officers. The police force of the USA and the UK, have a promotional system in place, which mandates that aspirants for supervisory posts have to possess the stipulated experience as a line officer. This is with regard to promotion to a middle management supervisory position (Buker 62). The federal courts had conceded that supervisors could be held accountable for their wrongdoings, under 42 U.S.C. §1983. This was the situation, prior to the year 2009. Congress had declared in this statute that it was seized with protecting constitutional and federal statutory rights. It intended to do this by providing a cause of action against any individual who deprived or caused to be deprived, the federal rights of another under the guise of state law (Levinson 273). These all – important protections have been significantly compromised by two contemporary decisions of the Supreme Court of the United States. These are Ashcroft v Iqbal and Connick v Thompson. In Ashcroft, the Court held that supervisors were not liable for the constitutional wrongdoings of their subordinates. This was to apply, even when the supervisors had knowledge regarding the wrongdoing or even if they had consented to such acts (Levinson 273). Subsequently, in Connick, the Court ruled that the office of the district attorney could not be held accountable for a single Brady violation; even if the concerned district attorney submitted that, the Brady training in his office was inadequate. The high – ranking government officials are vested with the important duty of supervising jails, schools, and the criminal justice system (Levinson 273). In addition, prior to the year 2009, it was the practice among the federal courts to hold supervisors liable under §1983 for the violations of the constitution performed by their subordinates. This applied to cases where the supervisor had personally participated in the constitutional breach. It was also applicable to instances, where there had been a causal correlation between the actions of the supervisor and the constitutional infringement (Levinson 274). Such causal connection could be demonstrated by showing that the supervisor had instructed the subordinates to act unlawfully, or the supervisor had been aware of the fact that the subordinates would act unlawfully and had refrained from preventing these acts (Levinson 274). It had been the intention of Congress to protect constitutional and federal rights, by means of §1983. However, in Ashcroft, the U.S. Supreme Court held that supervisory liability was a misnomer and that supervisors were not liable for the misdeeds of their agents. This ruling had the effect of restricting the ambit of supervisory liability. In addition, it served to eliminate supervisory liability. Iqbal failed to sue under the provisions of §1983, and his claim against the federal officials was a Bivens action (Levinson 274). The latter action enables the filing of suits against federal officials under the Constitution, based on federal common law, and not the statutory law. Apparently the Court had inequitably equated supervisory liability in a Bivens federal common law action with that under §1983. The latter generates a statutory right to relief against the perpetrators of violations to constitutional rights (Levinson 274). Moreover, the fallout of the erroneous ruling in Iqbal, resulted in some of the federal courts mandating the personal participation of a supervisor in the wrongdoing of a subordinate for establishing a §1983 liability. In addition, these courts have rejected claims based on acquiescence, condonation, or knowledge. In order to establish intent, the plaintiff has to prove that the supervisor had acted with discriminatory animus. With the ruling in Connick, the U.S. Supreme Court struck a telling blow upon the notion of government accountability (Levinson 275). Furthermore, liability under §1983 should be imposed, wherever supervisors responsible for preserving a custom or policy, do not train, supervise, or discipline subordinates, and where such failure results in a breach of the clearly established constitutional rights. Whenever, supervisors are actually aware of the constitutional violations of their subordinates, and choose to act with deliberate indifference to these violations, they are guilty of abusing their power. Such abuse is evidently in contradiction to the constitutional guarantee of substantive due process (Levinson 311). It is imperative to impose liability upon such supervisors. In addition, there are instances wherein the supervisors are aware, or possess constructive notice, regarding the occurrence or possible occurrence of constitutional rights violations. In such cases, supervisors will be deemed to have been deliberately indifferent, if they do not prevent their subordinates from engaging in such violations (Levinson 311). The statutory text of §1983 and its interpretation by the U.S. Supreme Court, effectively emasculate the state of mind requirement with regard to constitutional rights violations. As such, the state of mind requirement for every claim of liability regarding failure to supervise should possess the very same standard of objective deliberate indifference. Moreover, this standard should be the same as that which governs liability founded on the failure of a policymaker to act. The provision of a uniform theory for supervisory liability with respect to failure to act cases will have the beneficial effect of eradicating the confusion and ambiguity that prevails in the lower federal courts (Levinson 311). In addition, and more importantly, it will guarantee that the supervisors of public schools, prisons, jails, and universities cannot circumvent liability by ignoring the constitutional transgressions of their subordinates. Works Cited 42 U.S.C. § 1983 : US Code - Section 1983: Civil action for deprivation of rights. Washington, D.C. , 1983. Age Discrimination in Employment Act of 1967. Washington, D.C., 1967. Ashcroft v Iqbal . No. 566 U.S. 662. Supreme Court of the United States. 18 May 2009. Bass, Amal. "Pennsylvania State Police v. Suders: Turning a Blind Eye to the Reality of Sexual Harassment." Harvard Journal of Law & Gender 28.1 (2005): 195 – 206. Print. Buker, Hasan. "How important is it to experience how a line officer feels for police supervisors? Outcomes of an uncommon two-track promotion system in the Turkish National Police." Police Practice & Research 11.1 (2010): 61 – 77. Print. Burlington Industries, Inc v Ellerth . No. No. 97 – 569. Supreme Court of the United States. 26 June 1998. Connick v Thompson. No. 563 U.S._. Supreme Court of the United States. 29 March 2011. Del Carmen, Rolando V. "Civil Liabilities of Police Supervisors." American Journal of Police 8.1 (1989): 107 – 135. Print. Faragher v City of Boca Raton . No. 52 U.S. 775. Supreme Court of the United States. 26 June 1998. Giles, Steve and Mark Phillips. "Vicarious Liability and the Search and Rescue Team." Advanced Rescue Technology 10.3 (2007): 17 – 21. Print. 5 July 2013. Grossman, Rhea P. Law Enforcement Liability Risk. 10 January 2008. Web. 5 July 2013. . Levinson, Rosalie Berger. "Who Will Supervise the Supervisors? Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World." Harvard Civil Rights – Civil Liberties Law Review 47.2 (2012): 273 – 311. Print. Mack v Otis Elevator. No. 326 F.3d 116. Second Circuit. 11 April 2003. Mandell, Jodi R. "Mack v Otis Elevator: Creating more Supervisors and more Vicarious Liability for Workplace Harassment." St. John's Law Review 79.2 (2005): 521 – 552. Print. Parkins v Civil Constructors of Illinois, Inc. No. 163 F.3d 1027. Seventh Circuit. 1998. Pennsylvania Human Relations Act. Harrisburg, Commonwealth of Pennsylvania, USA, 1997. Pennsylvania State Police v Suders. No. 542 U.S. 129. Supreme Court of the United States. 14 June 2004. Suders v Easton . No. No. 01 – 3512. United States Court of Appeals, Third Circuit. 11 April 2002. Title VII of the Civil Rights Act . Washington, D.C., 1964. Read More