Municipalities can be exposed to liability

By G. Ross Trindle, III, Best Best & Krieger LLP.

When officers carry out a “consensual encounter” with a member of the public, unless they have reasonable suspicion that someone is breaking the law, they are not permitted to detain the person for any longer than necessary to confirm whether a crime has happened.  It used to be routine for officers to have people “stay put” while identification was verified during routine encounters.  Now that practice may expose a local agency to liability.

The Ninth Circuit recently found in Benson v. City of San Jose that, when a police officer orders a suspect to “stay put,” that command constitutes a seizure under the Fourth Amendment of the U.S. Constitution.  That simple phase can implicate municipal liability if it is issued pursuant to a custom, practice or policy of the local agency, according to a longstanding Supreme Court decision (Monell v. Department of Social Services of City of New York).

In the recent case Benson v. City of San Jose, an officer approached an individual who was loitering. The officer requested John Benson’s ID and while he was running the identification check the officer told Benson to “stay put.” Benson filed suit against the officer as well as the city and claimed that the officer had violated his Fourth Amendment rights because Benson was detained without sufficient cause and he did not feel free to leave. The Ninth Circuit court found that the initial contact with Benson was consensual, but since the officer did not have enough reason to suspect Benson of criminal activities, his order for Benson to “stay put” transformed the consensual stop into an illegal seizure under the Fourth Amendment.

The court also found that the actions by the officer implicated municipal liability since the officer and the police chief testified that the officer acted within the police department’s policy and procedure for such an encounter.  This evidence, the court found, constituted official approval and ratification of the officer’s decision and the basis for it, thus triggering municipal liability under Monell.

On appeal in Benson v. City of San Jose, the city argued that the officer approached Benson for a loitering offense in an attempt to demonstrate sufficient cause for the subsequent detention. However, the court noted that the officer never stated why he approached Benson in the first place. The argument was made after the fact, and not at the time of the stop, causing the court to reject the argument.

In light of this decision, officers should be mindful of the following points:

1. When practical, inform the subject of the purpose of the stop;

2. As always, document in detail the points of probable cause in the attendant police reports, including the explanation for and purpose of the stop, along with any other elements of probable cause that occur when they occur in the timeline of the contact;

3.  If recording the encounter via a belt recorder, body camera, or mobile audio/video system, make sure that the system is activated and picking up the encounter clearly—this may mean a quick check of recording indicators and turning down the AM/FM radio in a patrol vehicle; and

4. If it is necessary to prolong the stop, have and be able to articulate sufficient cause for the detention, even if it is just to run a license.

From consensual to detention

An officer does not need “reasonable suspicion” or “probable cause” to start a consensual encounter with someone. A police officer may have a conversation with a person and ask them questions at any time. During a consensual encounter, the person is always free to leave.  But when a reasonable person under the circumstances would feel that they are not free to leave—as when an officer tells them to “stay put” while their license is run—then the consensual encounter ends and a detention and/or arrest situation will arise that must be supported by sufficient cause.

Because each situation is unique, the line between a consensual encounter and an investigative detention is not and will not always be obvious. The situation will determine whether Fourth Amendment rights are involved and hence why accurate reporting (and recording) is so important.

Ignoring issues raised in consensual encounter dialogue can be detrimental to an agency, its administrators and municipality. Departments can and will be held liable for a deliberate indifference to appropriately train their officers, and to make sure their decision-making ability is based on that training.

However, the Supreme Court has clarified that a municipality can only be held liable for failure to train its officers when the failure to train amounts to deliberate indifference to the rights of persons with whom the police come in contact. While deliberate indifference may be a difficult standard to meet ultimately, the Supreme Court has rejected the view that a plaintiff must meet a heightened pleading standard to state a claim against a municipality for an unconstitutional policy, custom or practice.  Although it is difficult to prove the burden of deliberate indifference, according to published reports, the average cost awarded to plaintiffs in winning these types of cases is nearly $500,000.  That is a big risk to take when a policy and training fix is minor and easy to implement.

Prevention is key

Updated training and policies are especially important today.  The number of claims against municipalities, as well as a variety of governmental agencies and employees, has increased dramatically.  Moreover, Ninth Circuit precedent increasingly has called into question traditional law enforcement methods that, up until recently, have withstood constitutional scrutiny.  This shift should prompt law enforcement agencies to look at traditional training models and standardized policies for consistency with relevant statutes and case law.  The number of areas that remain “unsettled” for purposes of qualified immunity analysis are dwindling in number.

No municipality can assume to be liability free, but being proactive with management initiatives will help reduce the risk significantly.  Start by reviewing training methods and subjects and update where necessary.  Next, make training an ongoing and meaningful process; handing out a one page training bulletin at shift briefing may be enough for some topics, but for dramatic shifts in law, consult with legal counsel on how to keep officers in line with the current state of the law.  Then, keep all policies and procedures current and documented.  When needed, consult with legal counsel on standardized policies to see if adjustments need to be made for a better “local fit.”  Lastly, when a complaint is made, have it investigated promptly and thoroughly.  If appropriate, consider having another agency conduct the investigation.

The role of law enforcement continues to evolve and the pace of that evolution has increased.  Further, the price of law enforcement mistakes continues to increase.  Where public safety comprises the lion’s share of any local entity budget, it is in the best interest of command staff, administrators, officers, and local residents to avoid exposure to liability with updated training and policies.

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Trindle_Ross1G. Ross Trindle, III is a partner with Best Best & Krieger LLP and leads the firm’s Municipal Practice’s Public Safety Services Subgroup. His practice focuses on public safety services and public liability defense. Based in the firm’s Ontario office, Trindle can be reached at