Will citizen damage suits put the cuffs on law enforcement?

THE late William Parker, longtime chief of the Los Angeles police, often countered criticism of the cop on the beat by pointing out that the man in blue has to make split-second decisions on things that it takes learned jurists decades to sort out. This same analogy is being made now by police groups across the land in the face of a new United States Supreme Court ruling which not only justifies sanctions on improper action by law enforcement officers, but also makes police vulnerable to damage suits by private citizens.

The high tribunal has decided that police officers can be brought to court by people they wrongly take into custody -- even if such arrests are made with a valid warrant issued by a judge.

This ruling brought smiles to the faces of most civil libertarians who have, of late, watched with alarm as a law-and-order-bent court slowly chipped away at time-honored Fourth Amendment protections for the accused.

In turn, the decision has evoked strong concern from law-officer groups who say it erodes already declining police power.

However, before individual rights champions start pasting up new Miranda rights stickers in every stationhouse and pointing a ``you had better behave'' finger at the police, it might be well to assess just what the justices did and did not do.

First, they did establish a new liability for the cop on the beat. But they also left at least partial immunity for police from civil suits.

Police officers enjoy a ``qualified immunity'' from damages unless they ``knowingly violate the law'' or take actions that ``no competent officer'' could consider legal, held Associate Justice Byron R. White, writing for the court's majority.

Second, the Justices set the stage for possible large cash awards to the wrongly accused. But the burden is still on plaintiffs to persuade a jury that the evidence is so flimsy that a police officer could not have reasonably seen ``probable cause'' for an arrest.

Third, while police officers now can be sued, the court left intact the absolute immunity of magistrates and prosecutors from such civil action. In the past, the high tribunal held that this type of protection is needed to ensure that vigorous law enforcement is not deterred by the threat of liability.

Bert Neuborne, legal director of the American Civil Liberties Union (ACLU), says he is more relieved than overjoyed by the Supreme Court's action. He adds that if police were given absolute immunity from liability lawsuits, the Constitution's Fourth Amendment (prohibiting unreasonable searches and seizures) would become unenforceable.

``It's not a swing back'' from recent high court decisions limiting the rights of the accused, says Mr. Neuborne. ``But it is a refusal to erase the Fourth.''

The ACLU official insists that the fairest adjudication of this kind of matter would be for judges to share liability with police.

Law enforcement officials tend to agree with Neuborne on this last point. Jerald Vaughn, executive director of the International Association of Chiefs of Police, says police are too often left holding the bag. ``There must be a better way to address inappropriate police conduct than filing a lawsuit,'' insists Mr. Vaughn. He adds that law enforcement officers can no longer afford liability insurance. And he warns that some policemen may ``not bother to pursue some cases . . . for fear of liability.''

``And this would be to the detriment of the community,'' he points out.

Steven I. Friedland, assistant professor of law at Florida's Nova Law Center, suggests that this ruling ``may serve as a deterrent to untrammeled police activity.''

``Police may now start seeking prior approval from prosecutors even before [asking for] a warrant as an additional safeguard'' against liability action, he says. The ruling may also impinge on some police activity, he says.

The case in point stems from the arrest -- based on wiretap evidence -- of a socially prominent Rhode Island couple by a state trooper for possession of marijuana. A grand jury refused to hand down an indictment and charges were dropped.

The pair filed a $4 million damage suit against the law officer, claiming that their constitutional right to be free from unreasonable searches and seizures had been violated. A federal district judge said that the trooper could not be held liable since he had obtained a warrant. An appellate court, however, ruled that the couple were entitled to have a jury weigh their claim against the officer. The US Supreme Court agreed, opening the way for such a judicial hearing.

A Thursday column

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