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Lawsuit of the Day: Pissing on someone is outside the scope of employment

January 12, 2012

2. Law, 4. Arrest, 8. Lawsuits

Lawsuit of the Day: Pissing on someone is outside the scope of employment

The opening act:

State troopers took Derena Madison into custody after a 2:30 a.m. traffic stop in which they arrested her friend for driving under the influence. When officers said they would tow the car, Madison exited to protest. Police arrested her for public drunkenness and disorderly conduct, putting her into handcuffs and restraining her feet with manacles.

While she was restrained and shackled, she claims that Officer Chad Weaver “twice sprayed [her] face, head and body with pepper spray, without justification… for the purpose of torturing her.”

Meh.  Nothing special.  Just another loudmouth claiming police brutality. But then it got weird:

In response to her calls for help, she says several officers carried her outside the barracks and doused her with large quantities of cold water, after which she blacked out momentarily and fell to her knees in the snow. “When she regained consciousness,” Madison allegedly “felt and smelled urine on her head, face, neck and person. She believes that while she was unconscious, one or more of the defendants urinated on her.”

Yikes.

And what do the Pennsylvania State Troopers have to say?

“[S]ubduing persons is one of the acts of law enforcement officers are employed to perform; officers are also permitted to use force, if necessary, in the commission of their duties,” and that “in effectuating a traffic stop and dealing with an ‘out-of-control’ person,’ the officers were intending to serve the purposes of their ‘master,’ the Commonwealth of Pennsylvania.”

Um, OK.  And the Court’s response:

“Commonwealth employees are immune from liability due to intentional misconduct, so long as the employee is acting within the scope of his or her employment,” [Chief U.S. District Judge Gary]Lancaster wrote. But, if the court takes Madison’s allegations as true, it “cannot say that such acts are ‘clearly incidental’ to the duties of law enforcement officers.” Madison’s “allegations of assault outside the police barracks suggest personal motivation, rather than intent to serve the Commonwealth of Pennsylvania,” he added. “Therefore, [the officers] are not entitled to sovereign immunity based on the pleadings.”

Seems about right.  Here’s the full Opinion tanking the Motion to Dismiss.

The broader issue is Sovereign Immunity.  It’s grounded in the 11th Amendment:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

The theory is that someone’s interests will be harmed in one way or another by virtually every act of government, and that government needs to operate without a constant flow of lawsuits from the aggrieved.  Think of zoning laws, for example.  If someone buys a property wanting to put a grocery store there, their interests are harmed when they learn that the purchase was futile – the property is zoned for residential only and the request for variance is denied because the harm was self-inflicted.  Sucks to be him.

As you read above, the immunity even extends to “intentional misconduct” (read “intentional” in the context of mens rea) provided that the actor is still within the scope of their employment.  The line needs to be broad – trust me on this.  The flip side is to require government to defend itself against constant lawsuits grounded alternatively in fact and fantasy.  Government would grind to a halt.  Love it or hate it, we need the government to function.

But, then, sometimes even that broad line gets crossed.  Pissing on a shackled and unconscious woman is an example of crossing that line.  When that happens, the “stripping doctrine” kicks in.  Briefly:

When a state official acts unconstitutionally, he or she is beyond the scope of his or her authority and therefore has not been authorized by the state. As he or she has not been authorized by the state to engage in unconstitutional actions, the state official cannot invoke the state’s sovereign immunity.

Sucks to be the troopers.

We talked about the place in our laws of Section 1983 actions here.  That’s the home for cases like the above.  This one was so bad, however, that it extends into general tort law.

Good rule:  Never piss on someone outside the confines of consensual activity in the privacy of your home.  (And even then it should dawn on you:  “I just pi—.  Wait, what?  Oh no!”)

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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