During their careers, officers may find themselves with assignments outside their agency. Municipal police departments sometimes “lend” one or two of their own officers to county, state or federal task force groups for the purpose of tackling narcotics enforcement, gang suppression, cybercrime, etc.
These law enforcers often assume that if they’re injured or injure someone else while acting in the capacity of an officer for the task force (as opposed to their sponsoring agency), the larger group’s “insurance” has them covered. Those serving special assignments also assume the group will provide them counsel if they find themselves named in a civil rights lawsuit. While this may be true in some circumstances, it’s not always the case. Officers need to know who has them covered.
The amount of time the “on-loan” officers spend with these groups varies throughout the country. Some work with the group as needed; they work their regular shifts at their respective police departments until they’re called on to assist. Others are considered fulltime officers for the group, rarely to be seen at their sponsoring agency.
Officers assigned to a special task force may not be aware of the insurance and/or liability terms until after they have been named in a civil lawsuit. When assigned to a special task force or group, whether it is a part-time, as-needed assignment, or a fulltime assignment, police officers need to ask questions about how they will be covered.
Simply asking the chief of police or other administrator of their home agency may not be enough. These people, too, may not know the answer despite assurances to the contrary. You need to be responsible—take a look at the agreement yourself.
Due to the varying state laws, this article addresses just a small part of the issues implied above. Specifically, whether a person injured during the course of an arrest or search operation by a joint intergovernmental task force may file a civil rights lawsuit against the task force and/or the individual officers.
Which Law Prevails?
In a federal civil rights lawsuit, the “capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States…”1 In construing the meaning of the above rule, the U.S. Supreme Court has stated that “a plaintiff may proceed in the District Court… against an unincorporated [association] in its common name if, by the law of the [State], it has capacity to be sued as such. Only if it be decided that by the local law such a [party defendant] does not have capacity to be sued in its own name need there be consideration of the second part of Rule 17(b), which permits a suit against an unincorporated association for the enforcement of ‘a substantive right existing under the Constitution or laws of the United States.’”2
In other words, to determine whether the intergovernmental task force is an entity that can be sued, one must first look to the agreement establishing the group and the state law governing where it is maintained.
Where an intergovernmental agency is created by combining the personnel of various state and local police agencies, the group is liable to suit only if the entities that created the task force intended to create a separate legal entity subject to suit.3
For example, in Plemons v. Amos, plaintiff William Plemons was injured during the execution of a search warrant in a furniture store. Plemons, an innocent bystander, just happened to be in the wrong place at the wrong time. He filed a civil rights lawsuit against the City of Amarillo, Potter County, Randall County, Swisher County and the Texas Panhandle Regional Narcotics Trafficking Task Force.
He also sued various administrative heads of these agencies; however, he failed to sue any of the individual officers who participated in the execution of the warrant, with the exception of a lieutenant who was briefly at the scene shortly after it was secured. At the time of the incident, the task force was created as an intergovernmental, manpower-sharing arrangement. Each intergovernmental agreement was executed with the City of Amarillo. No less than 23 counties and some of the cities in the Texas Panhandle executed agreements.
After examining the intergovernmental agreement, a court found that the task force was funded in large part by federal grants and administered as part of the state’s Narcotics Control Program. The remaining funds came from the participating agencies. It also found the task force had no bank checking account and all of its bills were paid by the City of Amarillo. More importantly, the individual members of the task force were paid by the jurisdictions in which they were regularly employed. Those jurisdictions were then reimbursed by funds from the grants.
Because the majority of the task force members were from the Amarillo Police Department, all complaints against the members were to be investigated in accordance with the Amarillo department’s rules and regulations. However, if any of the complaints were “founded,” any discipline was to be consistent with the sponsoring police department.
The court then stated that under Texas law, “governmental entities cannot abdicate, delegate, or ‘contract away’ their law enforcement responsibilities unless the Texas legislature expressly permits them to do so.4” The court, citing to a number of other cases involving intergovernmental groups, concluded that the task force could not be sued.
Rulings Around the Country
Other courts have similarly held that a narcotics task force does not have the authority to sue or be sued. In Hervey v. Estes,5 the court held that an intergovernmental task force made up of various local, county and state agencies was not subject to suit because there was insufficient evidence to show that those entities intended to create a separate legal entity subject to suit.
In Hervey, under Washington state law, public agencies entering into an intergovernmental agreement may, but need not, establish a separate legal entity. The court found that the determining factor was what the parties set forth in their agreement. The task force did not have an operating budget as an independent entity; the contributing police agencies retained responsibility for the employment, salary, benefits, and terms and conditions of all employees; and finally, the agreement provided that “[f]or the purposes of indemnification of the unit personnel and their participating jurisdictions against any losses, damages, or liabilities arising out of the services or activities of the unit, the personnel so assigned by any jurisdiction shall be deemed to be continuing under the employment of that jurisdiction and its policing department.” In Eversole v. Steel,6 the court held that a drug task force comprised of police officers from four counties and several municipal agencies within those counties was not an official or separate entity that could be sued.
In Brown v. Fifth Judicial Dist. Drug Task Force,7 the court found that a multi-city, multi-county, unincorporated, intergovernmental, multi-jurisdictional drug task force could not be sued because it had no separate legal existence, nor had it been granted statutory authority to sue or be sued. The court also stated that “authorities more directly on point appear to be uniform in holding that drug task forces similar to the defendant in this case are not separate legal entities subject to suit.”8
While the federal courts seem to be pretty consistent that these intergovernmental task force groups are entities incapable of being sued, police officers participating in these groups would be wise to take a look at the actual agreements. As in Hervey, the agreements should spell out specifically who or what entity is liable for any losses, damages, or liabilities arising out of the services or activities of the task force. Do not assume that it will be the task force itself. Take a look at the agreement. After all, if the task force is not capable of being sued, who do you think is?
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
2. Busby v. Electric Utilities Employees Union, 323 U.S. 72, 73 (1944).
3. See, Plemons v. Amos, No. 2:03-cv-421-J, 2006 WL 1710415
(N.D.Tex. June 22, 2006).
4. Id. at *6.