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NCJRS Abstract

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NCJ Number: 98864 Find in a Library
Title: Defending Law Enforcement Officers Against Personal Liability in Constitutional Tort Litigation (Conclusion)
Journal: FBI Law Enforcement Bulletin  Volume:54  Issue:5  Dated:(May 1985)  Pages:25-31
Author(s): J Higginbotham
Date Published: 1985
Page Count: 7
Sponsoring Agency: National Institute of Justice/
Rockville, MD 20849
NCJRS Photocopy Services
Rockville, MD 20849-6000
Sale Source: National Institute of Justice/
NCJRS paper reproduction
Box 6000, Dept F
Rockville, MD 20849
United States of America

NCJRS Photocopy Services
Box 6000
Rockville, MD 20849-6000
United States of America
Document: PDF
Language: English
Country: United States of America
Annotation: In this second of two parts analyzing the U.S. Supreme Court's revision of the qualified immunity defense in Harlow v. Fitzgerald, litigation tactics are described which officers can use to mitigate or counter the adverse impact of being named as a defendant in a constitutional tort civil action.
Abstract: The key issue in asserting the qualified immunity defense is whether the law purportedly violated was clearly established at the time of the incident giving rise to the action. In< addition, the Court held that liability would not be imposed if the officer claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard. One application of this defense is in cases involving extremely recent changes in law. In a 1979 suit filed against a newly elected governor, the court held that following official legal advice in the course of one's duties was an exceptional circumstance sufficient to avoid liability for a constitutional tort. Two cases have examined the liability of constitutional violations by persons acting on the instructions of a superior. In the first, a court held that an official court transcriber was immunized from liability arising from following the instructions of the judge presiding in the case. In the second, FBI agents participating in a counterintelligence operation were not held to be immune, although they were following an approved organizational policy. Additional procedures which may prove useful in countering the filing or continued prosecution of groundless and/or frivolous actions include the use of counterclaims for battery or defamation, attempting to have attorneys' fees assessed against the plaintiff, and attempts to have sanctions imposed against the plaintiff's attorney.
Index Term(s): Civil liability; Civil proceedings; Judicial decisions; Legal liability; Police legal limitations; Sovereign immunity; Torts; US Supreme Court decisions
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