Tag Archives: policing

Incentivizing Appropriate Police Behavior

Many years ago, I spent three years heading up Indianapolis’ legal department. It was–among other things–my introduction to the way municipalities defended against (and far more often, settled) claims of police misconduct and/or brutality. I’d venture to say that very few taxpayers have any idea how costly those claims can be.

A recent post to Lawfare considered not only the dollars, but the sense.

On March 12, the City of Minneapolis agreed to pay George Floyd’s family $27 million for his wrongful death via the knee of a police officer. Despite being the largest pretrial civil rights settlement, it is only a fraction of the taxpayer money spent on settling police brutality. From 2015 to 2019, more than $2 billion, mostly taxpayer money, was used on civilian payouts for police misconduct in only the 20 largest police departments.

As the article points out, the way in which we currently address payouts for police misconduct operates to absolve officers from any financial culpability, no matter how egregious the behavior that triggered the settlement. This is mostly due to qualified immunity, which I have discussed previously. Qualified immunity is a court-invented doctrine that was originally intended to protect officers when they were acting in good faith, but actually ends up allowing police officers to escape civil liability for virtually any behavior, good faith or not.

While qualified immunity often shields government officials broadly from personal liability, it is particularly used with law enforcement. And though it is applicable only to civil proceedings, prosecutors, defense attorneys, judges and even jurors are often swayed during grand juries and criminal proceedings by the protection of qualified immunity.

Depending on the state, officers accused of misconduct might even keep their police pension and even be able to sue the municipality for back pay if they are fired and then found criminally not guilty. The money for civilian payouts for police misconduct does not come from police department budgets. Rather, civilian payouts overwhelmingly come from general funds, though some come from bonds and even insurance policies, particularly in smaller areas.

Between expansive doctrines like qualified immunity and a widespread social willingness to accord police officers–who have an admittedly difficult and dangerous job–the benefit of any doubt, holding an officer personally responsible for misconduct is an exceedingly rare event.

The Lawfare article suggests structural changes that would begin to redress the current imbalance. A number of legal scholars recommend abolishing qualified immunity, and there are other changes that would provide incentives for better monitoring of officer behaviors (and arguably, better training protocols) by police departments. They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.

The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.

Besides the settlement for Floyd’s death, a series of notable civil settlements for police misconduct include $38 million in Baltimore County, Maryland, for the wrongful death of Korryn Gaines and the accidental shooting of her four-year-old son, Kodi; $20 million in Prince George’s County, Maryland, for the wrongful death of William Green; $12 million for the wrongful death of Breonna Taylor of Louisville, Kentucky; and $6 million in Cleveland, Ohio, for the wrongful death of 12-year old Tamir Rice, who was killed while playing with a toy gun in a park. All the people mentioned above are Black. These cases are not cherry-picked but, rather, are part of a much larger systemic problem in policing and municipal government. Black people are roughly 2.5 times as likely as whites to be killed by police. Blacks are 3.5 times more likely to be killed by police when they are not attacking or do not have a weapon relative to whites, like Floyd, Green and Rice. Black women are disproportionately more likely to be killed in their homes by police, like Taylor and Gaines.

There are also many incidents that do not end in death but will probably result in civilian payouts for police misconduct. Some of the most recent incidents include a five-year-old who was arrested and yelled at by police after leaving school in Montgomery County, Maryland, as well as Marion Humphrey Jr., a 32-year-old law student who was detained for more than two hours as state troopers in Arkansas searched his U-Haul. Humphrey, the son of a retired judge, has already sued the Arkansas State Police.

Reforming the way these settlements are funded would not only incentivize improved training, oversight and behavior, it would save taxpayer dollars that could be put to far more productive use.

Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.