Police officers facing a multitude of potential civil claims every time they put on a uniform can now add another to the list: fabrication of evidence.
While malicious prosecution and Fourteenth Amendment Substantive Due Process claims have long been a concern for any police officer whose arrest or investigation results in a criminal conviction, the independent fabrication claim is relatively new. First recognized in the Third Circuit in 2014 in Halsey v. Pfeiffer, the claim has been rarely but increasingly addressed by the courts and represents a new concern for police officers in the performance of their duties.
Briefly stated, the Third Circuit has recognized that, when fabricated evidence – not evidence that is merely incorrect or disputed – is used to support criminal charges, the criminal defendant can recover civil damages against the officer who proffered the false evidence.
The good news for police officers: the bar to succeed on such claims is high. Not only must the evidence be fabricated, the officer must have been aware that the evidence was incorrect and offered it anyway or offered it in bad faith; and it must have affected the outcome of the case. In fact, courts addressing the claim have noted that it will be the “unusual case” in which an officer cannot prevail on summary judgment.
The bad news: in differing slightly from malicious prosecution claims – where the proceeding must have been initiated without probable cause and the officer must have acted maliciously – officers now face an additional avenue of potential liability.
To mitigate the risk of such claims arising after criminal charges are brought, police officers should be careful to properly document and verify the evidence used to support criminal charges, including witness statements. Police departments should train their officers in the proper drafting of warrant affidavits and evidence handling. While these steps will not eliminate the potential that such a claim will be raised, they increase the likelihood of defeating the claims early in litigation.
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