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Injuries From Police Spark Interesting Tort Questions….

Most often, civil lawsuits center around claims between two private citizens involving personal injury, negligence or strict liability. On occasion, lawsuits involve a public or private corporation or company suing or being sued in its capacity as a business entity. However, even more rarely, a civil lawsuit will involve a governmental body as a defendant against a plaintiff injured by an act or omission by a government employee or agency. When this happens, interesting issues of state sovereignty and the California state tort claims arise presenting limitations on recovery and enhanced procedural requirements with respect to service of process.

The governmental agency bearing the brunt of nearly all tort claims by private citizens is city, state and local law enforcement. Inevitably, law enforcement officers must come in close, sometimes violent, contact with private citizens and many have tried to recover under theories of assault, battery and false imprisonment. On Thursday evening, a 47-year old man was wounded in a police-involved shootout surrounding a domestic violence incident. Another police shootout took place in Los Angeles as LAPD was investigating a string of vehicle burglaries. With this type of police involvement in gun battles, it is a wonder how the courts might resolve a conflict between a law enforcement agency and, perhaps, an innocent bystander or pedestrian hit or killed by a stray bullet.

For starters, government agencies like law enforcement bureaus are protected under the 11th Amendment to the U.S. Constitution. This amendment shields states and state governments from civil actions- thus granting governmental immunity to all state actors. However, most states including California have waived these protections in part to allow for a capped recovery for anyone injured or killed while any government agency or employee is acting within the scope of employment. Thus, an innocent person hit or killed by a police shootout may be able to recover under a theory of battery or wrongful death.

Certain defenses apply, of course. Police are often protected by a “public necessity” defense that provides a privilege to use deadly force in any situation in which the public is under an imminent risk of danger. In many situations involving LAPD shootouts, it is quite possible that the public necessity would trump any tort claim despite California’s partial waiver of the 11th Amendment governmental immunity protection.