Legal liability—in the form of a “Section 1983” lawsuit targeting law enforcement or an accusation of “state-created danger”—is a constant threat to any community government.

It’s been established that immersive simulation-based training tools are a uniquely powerful tool for increasing public safety (by better preparing officers for whatever the street might throw at them). But those same tools also offer unique opportunities to reduce legal liability should the worst-caseworst case scenario become reality.

Understanding “Section 1983” Liability and Litigation

In the normal course of police work, suspects, victims, and bystanders will get injured. It’s unavoidable. In general, the state and its agents (i.e., law enforcement) enjoy broad protection from criminal liability while performing their duties. For example, there is a large body of law around the legality of use- of- force. (This is generally based on the “reasonableness standard” under the 4th Amendment of the U.S. Constitution, as understood through two landmark Supreme Court cases: Graham v. Connor and Tennessee v. Garner.)

The takeaway: officers are largely immune to criminal prosecution based on when and how they determine to take actions that result in death or injury.

But officers, agencies, and units of government can easily find themselves in situations where their actions—although deemed unquestionably legal and justifiable—still leave them liable for civil damages. This civil liability is often called “Section 1983 Litigation,” because it is based on the Civil Rights Act of 1871, which is section 1983 of title 42 of the Code of Laws of the United States of America (i.e., “42 U.S.C. § 1983”). According to this statute:

“Every person who, under color of [state or local law] … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and [federal] laws, shall be liable to the party injured.” 

In other words, an officer who violates an individual’s Constitutional or federally protected rights may be liable for civil damages. While such legal action can target specific officers, since it is seeking monetary damages, it’s much more likely to name the agency or municipality, generally citing a failure to adequately train or support officers, and thus creating the conditions for the violation, deprivation, or injury.

Understanding “State-Created Danger”

Exposure to Section 1983 litigation—sometimes called “state-created liability”—is intertwined with a separate source of liability for law enforcement agencies and local units of government: “State-created danger.”

The law generally recognizes that the state (and its agents, like law enforcement or school teachers) do not have an obligation to protect private citizens from violence or injury. This goes hand-in-hand with the immunities to criminal prosecution described above.

The “state-created danger” theory is an exception to this protection. It may be triggered “when the state affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger’.” [source]

Although there are differences in various jurisdictions, in most areas an incident must satisfy four conditions for a plaintiff to prove the state is liable for an injury or death:

• The harm was foreseeable and fairly directly resulted from action/inaction
• The state (or its representative) acted with a degree of culpability that shocks the conscience (i.e., that an impartial observer would see the behavior as obviously unjust)
• There was a relationship between the state and the plaintiff
• The state representative used their authority in a way that created a danger (or rendered the citizen vulnerable to danger) in a way that would not have been the case had that representative done nothing

What’s concerning to many communities is how subjective these conditions are. For example, over the course of 2020 alone we’ve seen huge shifts in what constitutes an “obviously unjust” action by a government agent. Likewise, the idea of “foreseeability”, and how outcomes would be different had state representatives acted differently, can be argued nearly endlessly.

 

Using Simulation to Reduce Liability

High-speed pursuit has become an especially troubling source of state-created danger and Section 1983 litigation. In a given year, juries award roughly $65 million in damages to individuals killed or injured in association with a police pursuit nationwide. And that figure represents only the jury awarded damages. When you begin to factor in out-of-court settlements and other expenses, it’s estimated that police pursuits cost state and local governments as much as $1 billion annually nationwide.

There are three ways that a simulation-based training program can help insulate your department or local government from litigation:

• Decreasing incidents: There are countless examples of how a simulation-based training program that focuses on specific interactions or decision-making processes can massively decrease negative citizen-officer interactions and injuries (both for citizens and law enforcement).
• Documentation of “adequate training”: As we noted above, a lack of “adequate training” is often the basis of successful Section 1983 litigation. Your simulator doesn’t just help you train officers and improve performance; it can also be used to document the existence of adequate and appropriate training procedures.
• Evidence of Care: Any state-created danger claim hinges on the idea that officers or agencies are acting with “deliberate indifference” when a citizen is injured during the course of their work. Employing simulation-based training with specific scenarios addressing sensitive situations demonstrates that, far from being callous or deliberately indifferent, your agency and officers have worked hard to attempt to be sure that everyone is treated humanely and safely, no matter how challenging the situation.

Reducing legal liability is extremely tricky because it relies not only on working within the letter of the law, but staying in step with changing public sentiment. This is why FAAC is vigilant about expanding and revising the libraries of immersive simulation scenarios available to our customers. This includes working with individual departments and communities to create custom simulation scenarios to precisely match local areas of concern. In-depth, hands-on, responsive customization is the only way to truly ensure that training meets the needs of those communities and addresses the very real concerns that these sorts of lawsuits are meant to remedy.