Someone will pay lots of money; it won’t be the cops
It seems like an outrage that victims can’t sue police officers for damages. Activists cry for justice and victims scream in frustration. Politicians line up one either side. It doesn’t matter; widespread accountability through civil suits is fantasy.
Breathless headlines screech that police officers “…act like laws don’t apply to them…They’re right.” News reports on qualified immunity dwell on lack of recourse but skip over important points:
- Qualified immunity applies only to civil lawsuits. Criminal statutes clearly apply. Derek Chauvin faces second-degree murder charges. Garrett Rolfe faces felony murder charges in Atlanta with the potential for the death penalty. Concerns plague both cases, and many officers avoid charges, but the mechanisms exist.
- Even with qualified immunity, victims recover damages from police agencies, just not from the individual officer. Rodney King famously settled a civil suit with the city of Los Angeles for $3.8 million. In 2018, Chicago alone paid out $85M in settlements and paid lawyers an additional $28M for police misconduct cases. In its best recent year, 2015, the city still paid out $31M and $13M in settlements and lawyers.
- The dirty secret that no one talks about is that eliminating qualified immunity won’t put officers in much financial jeopardy. One way or another, government agencies will usually make officers whole and protect them from financial risk.
How we got here
In 1961, a group of both black and white Episcopal clergymen toured the South in a “prayer pilgrimage.” In Jackson, Mississippi, these brave and peaceful men intentionally entered the segregated waiting room at the bus station. Police promptly arrested them for ‘a breach of the peace’ when they failed to leave when ordered. In 1965, the court decisions in similar cases made the statute segregating the waiting room unconstitutional. The clergymen then sued the police officers as individuals for violating their rights by enforcing an unconstitutional law.
In Pierson v. Ray, the Supreme Court ruled that police do not enjoy absolute immunity like judges, but retain immunity from suit when acting in good faith and with probable cause. Police cannot predict which laws will be ruled unconstitutional in the future.
In 1982's Harlow v. Fitzgerald, the court tightened the requirements by separating the idea of intent from the good faith defense. The old standard held officials accountable if the official:
“knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . .”
The relatively uncontroversial 8–1 decision delivered by a liberal-leaning court determined that trying to determine intent was expensive and ultimately irrelevant.
The standard of knowing that an action is unconstitutional sounds reasonable, but has become an impossible hurdle in practice. Courts interpreted this to mean there must be an explicit statute or a previous court case ruling specific actions unconstitutional. This devolved into a chicken-and-egg fiasco. Plaintiffs cannot simply argue the obvious, that stealing $250K from a suspect during a search violates their rights to “life, liberty, or property” without due process. Instead, they must show that there has been a previous court case that established that stealing money under that particular circumstance was ruled unconstitutional.
The responsibility for correcting interpretation of statutes and precedents resides in the judicial branch. Despite several opportunities to address an area that most regard as an injustice, the US Supreme Court declined to take up the issue this term.
Who pays the bill?
Civil suit decisions, typically use a ‘preponderance of evidence’ standard. Liability only requires the act to be more likely than not. Consider it the 51% rule. Criminal cases use the much harder to prove ‘beyond a reasonable doubt’ standard. A jury acquired OJ Simpson of murder in his criminal case. A different jury found him liable in a wrongful death lawsuit, costing him $33.5 million.
Mississippi police salaries average around $33K, compared to $46K needed for a living wage. How will an officer in Mississippi pay a million-dollar judgment? Even for lower offenses, what if a jury finds that an officer ‘more likely than not’ shoved someone when he or she didn’t need to? Even a $10K settlement would be ruinous. Why would someone work in today’s volatile environment exposed to that kind of risk?
In medicine, doctors mitigate risk by paying tens of thousands of dollars in malpractice insurance. Costs vary by state and specialty, with an OB-GYN in New York paying over $200K per year and an internal medicine specialist paying just less than $16K per year in New Jersey. What would an insurance company charge to indemnify a beat cop on the south side of Chicago? Whatever the number, an individual policeman couldn’t afford it.
Instead, cities provide insurance. Large cities self-insure, while smaller towns might buy expensive third-party insurance. Unless acting in a manner so grievous that prison is likely anyway, cities will extend insurance to cover individual judgments against officers.
Colorado has already started down this road. This week, the state passed legislation stripping qualified immunity from law enforcement officers and subjecting them to civil suits in state courts. At the same time, the law requires that agencies indemnify officers unless found to be acting in bad faith or if they were criminally convicted. Even if forced to pay personally, the officer’s damages are capped at the lesser of $25K or 5% of the judgment.
Eliminating or paring back qualified immunity will lead to increased litigation. It will not lead to police officers routinely paying claims out of their own pockets. So who wins and loses?
- The plaintiffs. Victims might recover more damages more often. Perhaps lawsuits will become easier to win by naming both the city and the individual, or perhaps smart lawyers will file separate suits against both.
- The lawyers. Whether or not victims receive higher or more frequent awards, the increased litigation will benefit one key Democratic constituency: the trial lawyers.
- The cities and states. As litigation increases, cities and states will pay more judgments, settlements, and especially legal fees. That money comes from the taxpayer.
If the increased cost were to eliminate some amount of police misconduct then the price might be worth it, but cities will be forced to limit out of pocket payments by officers except in situations that will send them to prison anyway. If prison fails to deter criminal misconduct, additional fines on top of prison will not help.
Despite the fact that eliminating qualified immunity will not change much, the issue provides a new political wedge. Democrats in the Senate are using the issue to justify, at least in part, their opposition to the Republican police reform bill. Republicans are digging in. As a result, reform has morphed into the usual political gotcha game about painting the other side as responsible for failure rather than working together for success.
Senator Mike Braun, a Republican from Indiana, introduced a bill seeking to carve a middle path. Instead of completely eliminating qualified immunity, the bill shifts the burden to the police officer to show that law or precedent allowed the actions in question. Perhaps a middle ground will emerge from the swamp.
Brian E. Wish works as a quality engineer in the aerospace industry. He has spent 29 years active and reserve in the US Air Force, where he holds the rank of Colonel. He has a bachelor’s from the US Air Force Academy, a master’s from Bowie State, and a Ph.D. in Public and Urban Administration from UT Arlington. The opinions expressed here are his own. Learn more at brianewish.com.