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An Often Forgotten Group of Plaintiffs

Posted By:  James C. Lewis, Esq.

Shapiro, Lewis, & Appleton

Virginia Beach, Virginia

On April 3, 2012, a man died while in police custody in Norfolk, Virginia (VA). The details of the story remain somewhat unclear, but it appears that police officers restrained and pepper-sprayed a combative and suicidal man. The man lost consciousness while being transported to a hospital for medical attention, and later died after arriving at Bon Secours DePaul Medical Center. While the news report does not indicate that any police misconduct was at issue does make you think about a class of potential victims of personal injury that are often overlooked: individuals who are injured while in police custody or detention.

When a personal injury occurs outside the context of criminal law and procedure, we take it for granted that the injured victim can seek recovery in a relatively straight-forward fashion. But once police officers get involved, the rules start to operate a little bit differently, sometimes even if the detained individual didn’t even engage in criminal conduct. Even though personal injury suits against police officers or prisons can be quite a bit thornier than a normal personal injury claim, these victims still have rights and an interest in recovery if there was negligent conduct.

Aside from potential constitutional civil rights claims that victims of police abuse might have at their disposal, these injured parties might also be able to bring a normal personal injury claim on the basis of negligence. The same negligence laws will apply to the case, but they will be interpreted in the context of reasonable police action. In other words, the plaintiff will still have to prove that the police officer owed a duty of care to the plaintiff and that the officer breached that duty. Depending on the state or jurisdiction, there could also be sovereign immunity hurdles to jump as well. Behaviors that would be unacceptable from a normal citizen suddenly may be “reasonable” if carried out by a police officer while trying to uphold public safety.

Even if the analysis is different, the rights of injured plaintiffs still stand. An arrest or detention does not strip an individual of all protections. And as overlooked, and sometimes unsympathetic, as these victims can be, it is still important for to ensure that those rights are upheld.

About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach InjuryboardNorfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.

For more information about Shapiro, Lewis & Appleton, please visit or the International Society of Primerus Law Firms.

To learn more about Jim Lewis, VA Personal Injury Attorney, please click here.


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