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Carrot-and-Stick Solutions to Police Immunity and Municipal Liability

Congress should rewrite the ground rules to minimize nuisance lawsuits that can cost local taxpayers millions, while focusing civil courts on bad cops and blind-eye departments.

Former police officer Derek Chauvin kneeling on George Floyd.
Former police officer Derek Chauvin kneeling on George Floyd.
(Facebook)
Congress is debating various reforms of the civil qualified immunity now provided to police officers. Republican Sen. Tim Scott proposes that police departments alone should bear the financial burden for civil rights violations by individual employees, which would be the worst of all worlds for local governments and their taxpayers. Many Democrats find this unacceptable, and seek at least an ounce of flesh from bad cops.

A bipartisan working group is trying to find middle ground because this issue could tie up other police reforms. Local officials will need to encourage Congress to adopt litigation reforms that include both carrots and sticks to induce overdue behavior changes in both the law enforcement and legal professions.

To set the stage, the single most effective solution to police immunity issues that confound both sides of the argument is also the simplest to invoke: Congress can amend the federal statutes to allow claims of qualified immunity by peacekeepers only when an officer was wearing an operational body camera that produces exculpatory evidence. This simple rule would quickly put an end to all the foot-dragging over body cams, and it also would promote public trust while effectively gating the lawsuits. To curb nuisance lawsuits that cost local taxpayers millions each year, the federal statute should also limit municipalities’ civil liability to extreme or recurring cases where departmental supervision or training regimens are negligent and should require the losing party’s law firm to pay specified legal and court costs.

The strongest arguments for qualified immunity for individual officers are that the employer has deeper pockets and is respondeat superior — responsible for employees’ misbehavior — and that nobody with a right mind would enter the profession of law enforcement if they perennially faced personal liability for damages in a civil jury trial, even if acquitted in criminal proceedings. Law enforcement is a hazardous profession to begin with. If it also includes financial risks for performing one’s duty in heated moments, the downside eclipses any calling to public service.

On the other hand, it offends police-reform proponents to think that a guilty police officer could escape criminal conviction on legal technicalities and then also walk away free of any financial responsibility to the victims or their families. To victims of brutality, blanket immunity precludes justice. A civil award of financial damages is a modern proxy for “an eye for an eye” — or at least a deserved black eye.

At the local level, law enforcement agencies must revise their long-standing internal policies and union agreements to put clear limits on the indemnification that many employers now provide to rogue cops. It’s one thing to provide a common legal defense for innocent officers, but taxpayers should not shield the miscreants. Even worse, if liability extends only to the employer, as Sen. Scott is posturing, bad cops would enjoy a free pass to misbehave egregiously at taxpayer expense.

On a practical level, the actual collectable proceeds of a court award for a police officer’s civil liability are limited by the defendant’s ability to pay. And I have yet to meet a wealthy police officer. Most members of our nation’s police forces live modest middle-class lives, some of them scraping by from paycheck to paycheck with limited savings. Try to collect a megamillion-dollar civil award from a guilty cop, and the outcome would be predictably futile: One cannot squeeze blood from a turnip. At most, the plaintiffs might be able to collect some cash from household savings and a garnishment of a fraction of future earnings, but that will be chump change compared with the outright cash settlement that the municipality would have to cough up. And jury awards are generally likely to be more sympathetic to a uniformed police officer, even a rogue cop, than to a faceless city, county or state.

For the vast majority of the public safety workforce, their largest asset over time is their pension benefits. In exchange for a few decades of service, the public rewards peacekeepers with a secure pension that typically is vested under state law. In some states, it’s a legally protected property right once the officer meets pension vesting requirements. So a federal law cannot wipe out a bad cop’s police pension rights — but it could empower a civil court to garnish some or all of the pension payments received for law enforcement service.

Therein lies a possible compromise solution in the congressional debate: Limit an individual officer’s liability in civil cases to a maximum of perhaps 30 percent of all future income, along with the entirety of pension benefits, marketable assets that were unencumbered before the incident, and any publicity-derived honoraria, stipends or media royalties. Then the plaintiff’s attorney can decide whether it’s really worth the trouble to undertake a civil trial, taking into account this ceiling on possible civil retribution, the odds of success, the risk of losing (with cost recovery at the uncompensated law firm’s expense), and the multi-year payment schedule, which will be unattractive for cash-hungry tort lawyers working for contingent fees.
For police officers prone to unwarranted and abusive actions, the prospect of civil court awards along these lines will prod them to find a new line of work. They would have very little financial incentive to remain on the police force if their entire pension could ultimately be snapped up by a court’s garnishment order. Even if criminal courts fail to convict them for whatever reason, a civil court would still have the power to make future police service a financial dungeon. Nor should there be any PR profits from martyrdom touted by crackpot news and social media.

What civil rights advocates overlook is that even if individual cops are liable, taxpayers will still foot most of the bill. Just as doctors carry malpractice insurance, peacekeepers will need to protect their families and their modest nest eggs from litigation risk with similar policies. But police officers cannot pass along the cost of insurance to patients as doctors do; they are employees, not proprietors. It’s almost inevitable that police unions will insist on group-wide personal liability insurance for their members, paid by employers. Even if such policies were to cover only the costs of legal defense if exonerated — the ethically correct model — the ultimate result will be a new line item in police department budgets.

In turn, insurance companies can be expected to underwrite discounted premiums to departments that provide world-class training, to counter a glaring weak spot in the U.S. law enforcement system. The insurance industry and muni risk pools will quickly prod police departments to clean up their act with better training and narrowly limited indemnification policies.

Advocates of law enforcement professionalism — and I am one — will support such a carrot-and-stick policy framework. The bar for civil awards should be set clearly higher for suing cops than civilians. Threshold factors like negligence, misfeasance, nonfeasance and malice should be coupled with a victim’s loss of life or debilitating disability, with liability limits calibrated for varying levels of wrongdoing and consequential damages.

Nobody wants to invite frivolous and nuisance lawsuits that target insurance settlements to make them go away. So Congress should clearly establish the financial risks for the really serious malefactors who cross the line between “to protect and serve” and abusive behavior.



Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
Girard Miller is the finance columnist for Governing. He can be reached at millergirard@yahoo.com.
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