Distinction between a Tort and a Crime in Common Law - Assignment Example

Tort Law Qn Traditionally, there was no clear distinction between a tort and a crime in common law. A tort is a legal jargon derived from the Latin word tortuous, which means crooked or bent. A claim can impose a person both criminal and tortious liability. In essence, tort is an infringement of a person’s civil rights in which the wrongdoer can be brought for a claim of compensation to the injured party. Torts fall into three basic categories, that is, strict liability torts, negligent torts and intentional torts. The three categories of torts carry varying elements and different standards of proof to litigate a tortuous claim successfully in a court of law. For a long time, police officers have enjoyed immunity for how they conduct criminal investigations and prosecution of offenders. The practice of not charging the police with civil liability can be traced to the customs of common law. During the 18th century, the crown was immune from civil liability arising in tortuous conducts and the tort was only confined to private prosecutors. However, the police have seen most recently their immunity from prosecution for malicious prosecution and negligent investigation diminish. Police officers have increasingly been subjected to civil liability cases as the common law rapidly evolve to meet and to conform to the demands of the contemporary welfare state (Dempsey and Forst, 2011). The standard required to proof the negligent liability in tort of a police officer is not as high as the standard set in strict liability torts and intentional torts. Negligence is defined as reckless and careless behavior that results in injury or damage. The standard required to prove negligence in tort is that of a reasonable man in the same position. Reasonable man implies a person under normal circumstances holding the capacity of the offender. Four elements must be proved for a claim of negligence to succeed. The elements include existence of a legal duty between the offender and the complainant. Secondly, the breach of that duty the offender. The third element is proximate cause and finally an injury being occasioned as a result of the breach of duty (Kappeler, 2006). A claimant bringing a civil liability suit against a police officer must first know what kind of the legal duty lies between the person and the police officer. The legal duty that the police owes the public arises from various sources and instruments such as statutes, judicial decisions, customs and departmental policies. Statutes such as criminal law create a duty for police officers to arrest individuals who are most likely to cause an injury to members of the public for instance a person suspected to have committed a felony, the police officers have a duty to arrest that person. In addition, a departmental policy requiring the police officers to hold the suspect of a felony in custody so that they can be identified by the complainant creates a duty to the police officers to hold the suspect in custody and to conduct investigations. In the case of Weinstein vs. city of Santa the court held that the police officers have a duty to draft and forward paperwork necessary in a criminal complaint, present the accused person before the court and assist the prosecution to establish a case against the accused person even in circumstances in which no particular danger can be deduced (Kappeler, 2006). Having established existence of a legal duty, a complainant is required to show the breach of the duty owed by a police officer. Mere existence of a legal duty with no breach of the duty owed does not create legal liability. Proving breach of duty is a case of fact and not case of law. In addition to showing the existence of a legal duty owed and that has breached, a complainant seeking civil liability against a police officer is required to establish the element of proximate cause. The elements of the proximate cause create a connection between the actions of a wrong doer to the injury occasioned to the complainant. To determine the proximate cause, courts usually pose the “but for” question. For instance, but for the police officer’s acts, would the complainant have sustained any injury. The purpose of the question is to distinguish an injury that would have occurred even without the negligence of the police officer. The last element that a complainant needs to establish is the injury or damage occasioned. Even after demonstrating the three elements, a complainant seeking civil remedy as a result of negligence will not succeed unless one shows actual injury or damage occasioned to one’s civil rights or property. The risk of a potential future injury resulting out of the three elements of proving negligence is not enough to prove the element of damage. There must be an actual injury or damage that has resulted (Kappeler, 2006). A civil liability claim can be raised where the police officer negligently fails to arrest. The claim of failure to arrest is raised where the police fail to take deliberate steps to enforce the law. A claimant will argue that they were injured as a consequence of the police to take reasonable care and diligence in arresting the offender. The claimant will assert that even after police established there was probable cause to arrest the offender, they failed to take any concrete action to arrest and bring charges against the offender, an action that brought injury to the complainant. One of the possible defenses available to a police officer in such a case is the defence of qualified immunity. The defense protects the police officers from malicious prosecution arising out of the actions of the police officer in doing their work. For the defense to be successful, the police officer must be able to show that their actions did not infringe an evidently recognized legal or statutory right. In this present scenario of the four suspects, after the Detroit caller contacts the police about the robbery, the police are imposed with a duty to investigate and arrest the four suspects. It is not in dispute that the police respond by arresting the culprits and recovering the stolen property. However, the step of arresting the suspects before charging them is a breach of duty on the part of the arresting police officers since the police are under a duty of presenting the suspects to court and assist the prosecution in establishing a case against them. Any reasonable policeman would have drafted charges and presented the four suspects to court. It is as a result of the breach of this duty of releasing the suspects that they torch the house of the complainant with a firebomb, that is, but for the release of the four suspects, the house would not have been torched with a fire bomb. Lastly, it is evident that the complainant suffers harm and loss of property as a result of the negligence of the arresting police officers. Therefore, the four elements of a tort of negligence have been established presenting a good negligent case against the police officers. Qn 2. Racial profiling is the act of targeting a certain group of individuals by the police officers based on their race or ethnicity on the belief that particular minority groups are most likely to involve in unlawful criminal activities. An instance of racial profiling is where the police stop a individual of a particular minority race for unreasonable searches or any other security related practice. Courts have considered acts of racial profiling against the constitutional provisions and framework. Courts have held that racial profiling goes against the provisions of the Fourth Amendment on illegal search and seizure as well as the provisions of the Fourteenth Amendment to the provision of equal protection and guarantee. Therefore, an individual who has been subjected to an act of racial profiling can approach the court for compensation arising out of a violation of their civil rights by race motivated law enforcement policies and practices (Barker, 2011). An individual bringing a claim of racial profiling n court is required to prove the element of intention to discriminate against a particular race or ethnic group. Intention is determining the motivating factor behind the police officer’s actions that entails circumstantial and direct evidence to establish the intention or motivation behind a police officer’s actions. A claimant should be able to show that a policy adopted by the law enforcement officers is based on the investigation of the individual based primarily on race, and nothing else then intention can be proved. Under the fourth amendment, the law guards against the unequal treatment and protection under the law. Therefore, where a claimant asserts that they have been intentionally targeted for investigation by law a policy of the law enforcement agency, a breach of the Protection Clause is deemed to have occurred (Heumann and Cassak, 2003). Direct evidence of intentional racial profiling was deemed enough to avoid summary judgment in the case of Marshall vs. Columbia Lea Regional Hospital. In this case, the claimant presented evidence to show that the police officer had an intention to profile racially through the officer’s conduct during the events in the case. The claimant had not committed the alleged traffic offence when the officer stopped him. In addition, the officer had a record of racially selective stops. When the officer was filling the citation claim, he noted the race of the claimant, even though, the form had no such provision. However, where race forms only one factor for a stop detention and the race being not the sole basis for the stop, the provision of the Fourteenth Amendment may not apply. The court held this position in the case of United States vs. Valenzuela. In the case of Brown vs City of Oneonta, the court held that where the description of the suspect by the victim fits a certain race, the subsequent arrest by the police of members of that race does not amount to racial profiling prohibited under Fourteenth Amendment Heumann and Cassak, 2003). In addition, a claimant should show a selective enforcement of a facially neutral criminal law that carries a discriminatory effect and solely meant for discriminatory purposes. In the case of United States vs. Armstrong, the Supreme Court refused the arguments of the defendants that the prosecution was selective based on race. There was no evidence showing defendants from a different race under similar charges were accorded a different treatment by the criminal prosecutors. Aligning the incidence of Robson and Parks to the two elements, the element of intentional stop detention is established where the police officers stop the two and asks for their identification documents and thereby detaining them for approximately 30 minutes for security purpose of checking the criminal records of Robson and Parks. It is evident that the two had not committed anything that could warrant for the stop and detention by the police. The Fourth Amendment guarantees every person to be protected against unreasonable searches and seizures to their person, house, papers and effects. The Fourth Amendment guards against the police conducting investigatory purposes to a person without any probable cause. The act of the police officer of taking the identification documents of Robson and Parks to ascertain their criminal records is a direct and the clear violation of the provision of the two. The court held in the case of Terry vs. Ohio that reasonable and articulate suspicion was a sufficient ground a police officer to briefly stop and question a person. However, this does not warrant the police to frisk and search a person with no probable cause such as possession of a firearm. A person’s criminal record is guarded by the right to privacy in the Fourth Amendment whereby to access the criminal record of a person the police officer should seek a warrant of the court that specifically mentions the extent of the information sought and the purpose to be achieved from that information. The person whose criminal record is being retrieved should be told of the same in advance. The police officers act of radioing their headquarter to access the criminal investigation of Robson and Parks goes violates the right to private information of the two. In addition, the police officers did not ask for the consent of the two nor had they any warrant to access such information. Robson and parks observe that people of other races pass by the police officers without being subjected to the same measures of stop and detention that the two have been subjected to. The police officers allege that the police department and county officials have requested for African-Americans to provide their identification documents before going to vote. The act amount to selective enforcement of the rules against the African-American by the law enforcement institution. This is in direct contravention of the Fourteenth Amendment that guarantees equal protection before the law. Therefore, the two can bring a claim against the police officers and the institution for racial profiling and selective enforcement respectively (Heumann and Cassak, 2003). The officers can raise a defense under the equitable standing doctrine. The doctrine denies an individual claimant the right seek an injunction against a police practice that is unconstitutional unless the claimant can show that they will suffer harm from the similar harm in the future. The doctrine was held in the case of the City of Los Angeles vs. lyons where the supreme court reversed a grant of injunctive relief given to the claimant. The principle of Lyon has been used in similar other cases of a similar nature. References Kappeler. E.V. (2006). Critical Issues in Police Civil Liability.USA: Waveland Press. Barker, T. (2011). Police ethics: Crisis in law enforcement. Springfield, Ill: Chares C. Thomas. Dempsey, J. S., & Forst, L. S. (2011). Police: Introduction to policing. Clifton Park, NY: Delmar Cengage Learning. Heumann, M., & Cassak, L. (2003). Good cop, bad cop: Racial profiling and competing views of justice in America. New York: P. Lang. Read More