Legal IssuesLegal Issues

Legal Issues in Probation and Parole

And

Community Based Corrections

LiabilityLiability

Can a law enforcement officer, an adult or juvenile PO, be sued for the performance of their duty?

LiabilityLiability

We live in increasingly litigious times.

There are more lawsuits against government agencies and officials.

LiabilityLiability

What is the primary source of liability in CJ?

BackgroundBackground

• Hands-Off Policy With Respect To Prisoner Claims• Because Prisoners Had Limited Rights• Because Corrections Officials Presumed to

“Know Best”• 1960’s Erosion of Hands-Off Policy• Due Process and Equal Protection

Initiatives

Landmark CaseLandmark Case

Monroe vs. Pape

ImmunityImmunity

• Some public officials have legal immunity for their actions.

• Judicial Officials • Executive Officials• Others Including POs

ImmunityImmunity

• Judicial Officials (Judges and Prosecutors)

ImmunityImmunity

• Executive Officials

ImmunityImmunity

• Some Other People• Quasi-Judicial Immunity

PO Liability AllegationsPO Liability Allegations

Constitutional ReviewConstitutional Review

• First Amendment• Freedom of Speech, Religion, Press, Assembly

• Fourth Amendment• Prohibits Unreasonable Search and Seizure

• Sixth Amendment• Right to Know Nature and Cause of Accusation• Right to Confront Adverse Witnesses

Constitutional ReviewConstitutional Review

• Eighth Amendment• Prohibits Cruel and Unusual Punishment

• Fourteenth Amendment• Right to Due Process

JurisdictionJurisdiction

• Federal vs. State Jurisdiction• Can both prosecute?

RecallRecall

Cases under Section 1983 are referred to as Civil Rights or Federal Tort Suits.

Section 1983 SuitsSection 1983 Suits

• Section 1983 suits have increased dramatically.• Can seek damages from defendant• Can be a Class Action Suit (Heard Collectively)• Successful suits generally generic, not specific

Landmark CaseLandmark Case

Monnell vs. Department of Social Services

Defending Against SuitsDefending Against Suits

How does a public officer defend against suits?

Good Faith DefenseGood Faith Defense

The Good Faith Defense

ReasonablenessReasonableness

The Reasonableness Test is crucial in determining applicability of the Good Faith Defense.

Reasonableness Test Reasonableness Test ExamplesExamples

• Shoot or No Shoot Situation• Due Process Requirements

• PO Knows Requirements • Fails to Inform Offender of Alleged Violations• Fourteenth Amendment Violation • Section 1983 Title 42 USC Suit

Personal LiabilityPersonal Liability

• There are two primary potential liability areas for POs.

Negligence Negligence

Example:

Legal RepresentationLegal Representation

Who defends a PO if he is sued?

Specific Court RulingsSpecific Court Rulings

Presentence Reports

Specific Court RulingsSpecific Court Rulings

Gratuitous Advice

Specific Court RulingsSpecific Court Rulings

Special Conditions

Specific Court RulingsSpecific Court Rulings

Communications

Specific Court RulingsSpecific Court Rulings

Failure To Disclose

Specific Court RulingsSpecific Court Rulings

Search and Seizure

Specific Court RulingsSpecific Court Rulings

Miranda Warnings

Specific Court RulingsSpecific Court Rulings

Revocation Due Process Requirements

Due Process Requirements:-Notice of Hearing

-Disclosure of Evidence

-Confrontation and Cross Examination

LiabilityLiability

What happens when a law, rule or regulation imposes an duty where none existed?

LiabilityLiability

Liability Interest Examples– Agency Rule States PO Must Provide Job

Placement Services– PO Does Not Do So Due To Caseload Size– Liability May Ensue To PO– Liability Probably Would Ensue To State