National Peace Officers Memorial Day

Today, May 15, is National Peace Officers Memorial Day, a day to “pay tribute to the law enforcement officers who have made the ultimate sacrifice for our country and to voice our appreciation for all those who currently serve on the front lines of the battle against crime…”

According to the National Law Enforcement Officers Memorial Fund, an officer is killed in the line of duty every 61 hours. In 2015, we lost 123 officers. This year, we have lost 36.

My heartfelt thanks, appreciation, and respect goes out to all of you who risk your lives to protect us. My thoughts and prayers go out to the families and loved ones of those who gave all in service to others. May your sacrifice and bravery never be forgotten.

No one has greater love than this, to lay down one’s life for one’s friends.   

John 15:13

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Legal Considerations for Tactical Medical Officers©

legal-considerations-for-tactical-medical-officersIn June 2015, I completed an article Legal Considerations for Tactical Medical Officers©. My legal and personal background naturally is suited to this topic. I have represented healthcare providers for most of my career, and it has been some of the most fulfilling work I have done. My experience taught me most healthcare providers went into their profession because they wanted to help people, and I came to believe in most instances they were doing God’s work or what God had led them to do. In the work they do, tactical medical officers are healthcare providers, just in a forum different from most. I have family and friends in the law enforcement field and who are former military. I always have admired those who follow a calling to serve. Being a gun owner and maintaining an enthusiasm and passion for firearms law, I appreciate the skill, practice, and dedication required of LEOs and soldiers. This article allowed me to combine all of my passions and help those doing the work I admire.

I also came to understand with my trial experience what was commonplace and every day thinking for me was foreign to most healthcare providers and law enforcement officers. While I often look at things from the perspective of how they will play out in court, healthcare providers and law enforcement officers often look at things from the perspective of how do I help this person or fix this situation, and they do not have the luxury of time or instant counsel before being required to act. My hope is this Article will provide a bit of insight into the law to avoid having to watch things play out in a courtroom or to be able to handle it better when it does.

So, to my tactical medical officer and law enforcement friends, go with God, knowing there are those of us who want to help you in your call to serve.

Download full copy of Legal Considerations for Tactical Medical Officers© by Sabrina R. Karels.

Bystander Claims for SWAT Response under Section 1983

I recently ran across an interesting Fifth Circuit Court of Appeals case while doing some research in a section 1983[1] claim. I found its analysis interesting and its potential applications in future cases in which a bystander may claim a deprivation of right against law enforcement officials intriguing.  As most law enforcement officers are aware, persons (or municipalities and local government entities) acting under color of state law may be liable for some deprivation of a recognized right. The law surrounding section 1983 litigation is enormous. The courts have ruled various types conduct or failures amount to “deliberate indifference.” Section 1983 liability is not limited to claims by those in custody. It will apply to any citizen of or person present in the United States who is subjected to a deprivation of protected right.

In Salas v. Carpenter[2], a county court clerk had complained to the Tarrant County District Attorney her estranged husband had sexually molested her two daughters from a previous marriage. Her estranged husband later entered offices at the courthouse with two guns, holding the clerk hostage. The Tarrant County Sheriff’s Department and Fort Worth Police Department both responded. Fort Worth PD dispatched its SWAT and hostage negotiation teams to the scene. In a heated discussion, the Tarrant County Sheriff demanded Fort Worth PD officers leave claiming courthouse security was within the exclusive jurisdiction of the Sheriff’s Department. The Sheriff’s Department did not have a SWAT team at that time. After failed negotiations and with no SWAT team with weapons and training for a dynamic entry for rescue, the estranged husband killed the clerk and himself. The clerk’s Estate brought suit under section 1983 and state tort law. The Estate claimed the sheriff acted with deliberate indifference in multiple regards as to the clerk’s life.

Ultimately, the Court of Appeals concluded the Estate had failed to allege a deprivation of right protected by the Fourteenth Amendment[3] (and thereby section 1983). Contrary to the Estate’s allegations, the Sheriff did not prevent a rescue, he exercised his authority to replace one rescue effort with another. The Court also distinguished this case from others where the actions of police failed to take action to alleviate a danger they created or aggravated. The Sheriff did not create the hostage situation or abandon the hostage. The Court noted while some may argue the Sheriff acted negligently, it did not give rise to a civil rights violation.

The discussion in Salas is instructive.  At the time of the decision—1992—the court noted the Fourteenth Amendment did not require training and equipping the Sheriff’s Department with special SWAT or hostage negotiation duties or provide a right to protective services such as ambulance service or fire-fighting equipment. Because there is no constitutional duty to provide these services, the failure to provide them does not deprive due process. Moreover, the Estate attempted to use the Sheriff’s public statements to the media after the event as evidence of deliberate indifference, but the Court concluded this only aided in establishing the Sheriff’s qualified immunity as he did not believe a SWAT team had been necessary. Notably, the Court stated: “We do not say that this crisis was properly handled or that Sheriff Carpenter made no mistakes. We say only that there was no denial of Juanita Hermisillo’s constitutional rights.”

Salas also is important because the Court concluded there is not constitutional duty to provide SWAT capability or specialized law enforcement units. However, Salas was decided in 1992. Since then, numerous law enforcement departments have begun utilizing SWAT teams.  It is possible depending on the nature of the case and facts involved as well as development of standards in the industry essentially dictating the use of SWAT teams, a later court could find a duty exists.

The facts of Salas obviously were tragic. Unfortunately, law enforcement officers often are criticized by the public and the media after the fact for judgment decisions made with only seconds to consider. Fortunately, the Salas case recognized the judgment and discretion necessary for law enforcement departments to do their jobs. Qualified immunity is to prevent litigation where it will:

unduly inhibit officials in the discharge of their duties. Second-guessing the decision of law enforcement officers regarding the choice of police personnel in a crisis would undermine that policy. Lawsuits alleging that police should have acted one way or another in response to a hostage situation ‘pose[ ] a no-win situation for the police and do[ ] nothing to encourage law enforcement or respect for constitutional rights.’

In the meantime, I hope none of my law enforcement friends finds themselves in a situation like this. Stay safe out there!

[1] 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”)

[2] 980 F.2d 299 (5th Cir. 1992).

[3] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.