Frequent contact with law enforcement agents is an accepted part of doing business in the fireworks industry. Oftentimes, clients feel as if they are being treated unfairly by a law enforcement agent (e.g., police officer, fire marshal, ATFE agent) and, as a consequence, they want to sue the law enforcement agency, as well as the individual agent(s), for damages. The commonly asserted claims concern alleged violations of due process, and negligent hiring, training and supervision. Invariably, the concept of qualified immunity is discussed with the client in the course of performing a cost-benefit analysis of pursuing compensatory damages against the agency and the individual agent(s) (remember, a municipality is immune from punitive damages).
Generally, the doctrine of qualified immunity shields law enforcement agents acting in their official capacity from suits for damages unless their actions violate clearly established rights that an “objectively reasonable” agent would have known. The “objective reasonableness” test is satisfied if other agents of reasonable competence could disagree on the legality of the offending agent’s actions. One readily appreciates how vague the test really is, as well as how easy it is to produce testimony from other agents that benefits the offending agent. To summarize, the focus is on whether a reasonable agent could have believed his actions were lawful in light of the prevailing law and the information available to him.
The other two commonly introduced reasons for applying qualified immunity are straightforward: (1) proof that it was not clear to the law enforcement agent that the conduct complained of violated a statute or constitutional right; and (2) proof that it was not clear to the law enforcement agent that the conduct complained of was permitted pursuant to an exception to the rule. Each of these defenses focuses upon the scope of the law enforcement agent’s knowledge of the relevant statutes and constitutional rights at the time of the complained act, and it can be extremely difficult to have a law enforcement agent admit that he knowingly violated the law. Instead, circumstantial evidence will be needed to effectively undermine the credibility of the witness.
An analysis of the claim of negligent hiring, training and supervision demonstrates how difficult it is for a plaintiff to meet the burden of proof and successfully prosecute the claim. The Supreme Court has established a three-part test to determine municipal liability: Plaintiff must prove that (i) the policymaker (e.g., police chief, chief fire marshal, agency director) knows ‘to a moral certainty’ that the employees subject to his direction and control will confront a certain situation; (ii) the situation either presents the employee with a difficult choice of the sort that training and supervision will make less difficult, or that there is a history of employees mishandling the situation; and (iii) the conduct complained of deprives one of a constitutional right.
In conclusion, given the fact that law enforcement agents are afforded broad protection in the course of investigating and administering criminal or civil matters, only the most egregious conduct (e.g., excessive force or denial of medical attention) qualifies for consideration when pursuing a claim for damages arising from due process violations or for negligent hiring, training and supervision.
