Who’s Got Your Back When Briefcases Replace Badges
I was preparing to argue against my first motion to suppress. I was an intern in the prosecutor’s office and a third year law student. The prosecutor, who is now a judge, asked me if I was nervous. When I said “No” she asked me if I was aware that the defense lawyers were very experienced and I replied, “Yes. I know that.” She asked me why I wasn’t nervous and I said, “For the past 12 years, I have gone to work thinking people were going to shoot or stab me. What are they going to do, object?” She laughed and we left her office to walk to the courtroom.
It was easy for me to make the transition from the street to the courtroom. I always had faith in the process and knew that law enforcement, the legal profession and the judiciary were alike in many ways. All three groups were filled with people committed to professionalism and ethics. After nearly 14 years as a member of the bar, I still believe that. However, there is a side to the legal equation that most LEOs never see and can be very scary.
When a person is sued in a civil suit, there are two things that person needs: a defense and indemnification. Let’s use a car wreck as an example. If you injure someone in a car wreck, your car insurance company will provide you with a lawyer who will answer the lawsuit, argue for you in court and represent you at trial. That is the defense part of the duty your insurance company agrees to do, even if you are at fault in the wreck. The second part of the car insurance company’s obligation is the duty to indemnify you. This means that if there is a verdict or judgment against you, they will pay that judgment up to the limits of your insurance policy. This example is pretty simple and barring any unforeseen circumstances, this is how it works every day in civil cases involving car wrecks. But what happens when you are sued as a LEO for something you did on duty?
Although it is often not required, many times a civil suit regarding actions you took while on duty will also name your government employer as a defendant. This means they are in the suit in the same role as you will find yourself. They must hire someone to file an answer, appear in court and defend the case at trial on behalf of the governmental entity. Your employer will likely have an insurance company that will, like your car insurance company in the example above, defend and indemnify the governmental entity. So, where does the individual LEO sit as a defendant in the lawsuit?
Well, not to lawyer up on you, but it depends. In many jurisdictions, the entity is also covered by an insurance company that may provide lawyers to defend you and pay any judgment up to the limits of the insurance policy. But what if there is no insurance policy? Well, then the governmental entity will make a decision as to whether or not they will provide you a lawyer and pay any judgment rendered against you. The scary question is this: are they obligated to defend and indemnify you? In most cases, the answer is, unfortunately, no.
Now, before you panic, realize that LEOs are often entitled to immunity from suit when they are acting in the course and scope of their employment. This immunity may be based upon your state constitution, federal or state law or case law. The details of immunity are too broad for one article. I discuss the topic in my book, “When Cops Kill: the aftermath of a critical incident.” However, this usually protects you from the indemnity part of the lawsuit because it ends the case before a judgment is entered against you. However, immunity does not help with the defense part of the case. In short,even if you have immunity, a lawyer must still answer the case and appear in court on your behalf to get the case dismissed.
In many jurisdictions, the governmental entity provides a lawyer for the LEO because it makes sense to do so. As a practical matter, if you are found at fault, it may be harder for the entity to win in court. In some states, the law requires the entity to defend the LEO and in some counties or cities, there may be a local ordinance that requires your employer to at least defend you. However, those laws often have significant loopholes that allow the governmental entity to decide the issue on a case by case basis.
In the normal course, the governmental entity or the insurance company for the entity will provide a defense. The problems start to arise if the LEO is retired or left the agency, was fired or resigned in lieu of termination, or in rare cases when the LEO violated policy or state law during the incident. In those cases, the LEO may be forced to retain her own attorney and that can be expensive. So, what should you do?
First, prepare in advance. Join the Fraternal Order of Police and sign up with the Legal Defense Plan. The plan will normally pay for the lawyer of your choosing to defend you if your employer refuses to do so. Second, if you get sued, find out in advance by asking the attorneys involved to put in writing the fact that the governmental entity will defend and indemnify you. Third, if you have any questions, hire a lawyer that will represent you personally to keep you informed.
On the street, your backup will likely be wearing uniforms. When the smoke clears, the adrenaline goes away, and the reports are all done, you will rely upon someone wearing a suit and carrying a briefcase to protect your career and your assets. Like anything else, be informed, be proactive, and be prepared.
As to the motion to suppress, the state won and the evidence came into court. I was thrilled. They objected a lot, but no shots were fired, no edged-weapons were deployed, and I was hooked. Stay safe.